Opposition Brief — Jaffe v. Snow

Bunremne Court. us |

FIL : |

SEP B 1993 |

No. 93-241 . ee ay a )

In The

Supreme Court of the United States

October Term, 1993

*

RUTH JAFFE,

Petitioner,

VS.

HARDY M. SNOW, JR. and ACCREDITED SURETY &

CASUALTY COMPANY, INC.,

Respondents.

+

Petition For Writ Of Certiorari

To The District Court Of Appeal

Of The State Of Florida,

Fifth District

*

RESPONSE IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

+

SHARON LEE STEDMAN

Attorney at Law

SHARON LEE STEDMAN, P.A.

1516 East Hillcrest Street

Suite 200

Orlando, FL 32803

(407) 894-7844

E. THom Rumpercer, Esa.

201 South Orange Avenue

Suite 500

Orlando, FL 32801

Attorneys for Respondents

Hardy M. Snow Jr. and

Accredited Surety & Casualty

Company Inc.

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

WOE PD ony eas hee ek ei ews ii

BE EET CRE PERE Ie hater: l

UNCEOTY FIOUMOOM: «soko 5d viv cys ctetcadsdvencs ws

SURI 5 5 gna ves an ee oe eee l

Counterstatement of the Facts ......

Reasons for Denying the Petition................ 19

I. The Florida judgment does not conflict with any

international agreement between the United

States and Canada nor any federal interest that

would require the Florida court grant comity by

enforcing the petitioner’s judgment.......

It. The Florida judgment does not violate the peti-

tioner’s rights under the Fourteenth Amendment

of the Constitution .............

Conclusion.........

TABLE OF AUTHORITIES

Page

CASES

Ackermann v. Levine, 788 F.2d 831 (2d Cir. 1986)..... 19

Ashwood v. Patterson, 49 So.2d 848 (Fla. 1951)......... 7

Atlantic Commercial Development Corp. v. Raymond,

No. 81-560 (Fla. 5th DCA Sept. 10, 1981)....... 12, 14

Barbara Raymond, et al. v. Continental Southeast

Land Corp., NO. TO41Gs 6 cepedee notes ee |) Fae es

Bechwith v. Bailey, 161 So.2d 577 (Fla. 1935) .......... 4

Davis v. Afbll, 328 So.2d 204 (Fla. Ist DCA 1976) .... 24

Garcia v. Metro-Dade Police Department, 576 So.2d

SO UFin. Sel LALA Ps ok cece eee ee ee ee 7

Gates v. Foley, 247 30.20 GO APIO. TAIT) fron ecco as ss 24

Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40 L.Ed.

94 (1895)... 0x 20bs2ebaden eee 5, 20

Jaffe v. Grant, 793 F.2d 1182 (11th Cir. 1986)

on eeee kb eeee aoe wwe ae eee 10, 34, Fax 00, O71, Oe

Jaffe v. Sanders, 463 So.2d 318 (Fla. 5th DCA 1985).... 22

Jaffe v. Snow, 610 So.2d 482 (Fla. 5th DCA 1992)...... 4

Laker Airways, Ltd. v. Sabena, World Airlines, 731

F.2d 909 (O.0. Cin S008 Ge 20

Moore v. City of East Cleveland, Ohio, 431 U.S. 494,

97 S.Ct. 1932, SZ LB Soe Cleese este esses sss ae

New York & N.E.R. Co. v. Bristol, 151 U.S. 556, 14

S.Ct. 437, 38 L.Ed. 269 (1693)...... BA ge See 25

ili

TABLE OF AUTHORITIES - Continued

Page

Norkan Lodge Co., Ltd. v. Gillum, 587 F.Supp. 1457

I Wh 6 ins 5 oo vs See chyna cec cian: 20

Overseas Inns S.A.P.A. v. United States, 465 F.Supp.

EM Ry oy gos oy 6c ov o's boceen cou ws 20

Patterson v. Colorado, 205 U.S. 454, 27 S.Ct. 556, 51

TE ion by hewn ess ska ks bide cdicesducs 25

| Register v. Benton, 75 So.2d 187 (Fla. 1975) ......... 6

| Ruby Mountain Construction & Development Corp. v.

| Raymond, 409 So.2d 525 (Fla. 5th DCA 1982)...... 14

Santosky v. Kramer, 455 U.S. 743, 102 S.Ct. 1388, 71

INE PM AIPOE Ds 66s y cts ccicerscivciceuncce 25

Tahan v. Hodgeson, 662 F.2d 862 (D.C. Cir. 1981)..... 20

United States v. Eng, 951 F.2d 461 (2d Cir. 1991)...... 7

| United States v. One Lot of U.S. Currency Totalling

| $506,537, 628 FSupp. 1473 (S.D. Fla. 1986)....... ae

| Worcester County Trust Co. v. Riley, 302 U.S. 292, 58

| S.Ct. 185, 82 L.Ed. 268 (1937).........0........... 25

Zablocki v. Radhile, 434 U.S. 374, 98 S.Ct. 673, 54

Sammie DEO (ISTE)... ww cree cc ee ee 25

OPINIONS BELOW

The opinion of the Fifth District Court of Appeal of

the State of Florida is reported at 610 So.2d 482 (5th DCA

1992), cert. denied, __ So.2d ____ (Fla. 1993). The opinion of

the Ninth Judicial Circuit, in and for Orange County,

Florida, granting summary judgment to the respondents

is set forth in Appendix 1.

STATUTORY PROVISION

The respondents submit that there are no constitu-

tional provisions or treaties brought into question by the

instant case so that this Court should summarily deny the

petition for writ of certiorari and award damages and

costs against the petitioner pursuant to Rule of the

Supreme Court 42 and Federal Rule of Civil Procedure 11.

*

JURISDICTION

Although the petitioner is attempting to invoke the

jurisdiction of this Court pursuant to 28 US.C., section

1257(a), by alleging that the state court decision violates

the extradition treaty with Canada, such is in fact a falsity

as the crimes committed by Mr. Jaffe were not extradita-

ble offenses.

COUNTERSTATEMENT OF THE FACTS

The actual facts of the instant case, rather than the

fanciful imagination and wishful thinking of the facts set

forth in the Petition for Writ of Certiorari, unequivocally

show that the instant case is not worthy of this Court’s

consideration. The case does not involve a federal ques-

tion that would invoke the jurisdiction of this Court. In

order for a correct determination, however, the respon-

dents set forth the following statement of the facts. The

following facts are the facts as found by the trial court

and affirmed by the Fifth District Court of Appeal!:

For the purpose of stating the undisputed

material facts in this judgment, this court has

relied upon portions of plaintiffs complaint,

motion, supporting memorandum, appendices

and facts appearing in three reported appellate

opinions: Jaffe v. State, 438 So.2d 72 (Fla. 5th

DCA 1983) (“Jaffe I’); Jaffe v. Sanders, 463 So.2d

318 (Fla. 5th DCA 1985 (“Jaffe II”); and Kear v.

Hilton, 699 F.2d 181 (4th Cir. 1983).

The material undisputed facts necessary for

the disposition of the cross motions are as fol-

lows: In 1980, Sidney L. Jaffe (“Mr. Jaffe”), a U.S.

Citizen, was charged in the Circuit Court of Put-

nam County, Florida, with 28 counts of viola-

tions of the “Florida Uniform Land Sales

Practices Law,” section 498.033(3), Florida Stat-

utes (1979). A violation of this statute is a felony

crime. After his arrest, Mr. Jaffe posted a

$137,500.00 bail bond written by Accredited in

order to secure his release from jail, and imme-

diately went to Canada where he and Mrs. Jaffe

took up residence. On the day he was scheduled

for trial, Mr. Jaffe failed to appear. A motion for

continuance filed by his attorneys was denied, a

' All facts set forth in the instant response were facts in the

record on appeal before the Fifth District Court of Appeal.

warrant was issued for his arrest, and Accred-

ited’s bail bond was forfeited. The prosecuting

attorney then filed a criminal charge of Failure

to Appear, section 843.15(1)(a), Florida Statutes

(1979). A violation of this statute is a felony

crime. The prosecuting attorney subsequently

made two applications to the Florida Governor

Seeking to extradite Mr. Jaffe from Canada, both

of which applications were denied. The record

does not show the basis for the denials. Mr. Jaffe

remained in Canada and “exhibited a deter-

mination to remain there in violation of his

undertaking to return to Florida to answer the

charges.” Kear at 181,2.

Snow and Accredited then hired two profes-

sional bail recovery agents, Johnsen and Kear, to

go to Canada, apprehend Mr. Jaffe and surren-

der him to the Putnam County Sheriff, which

they did. Mr. Jaffe was tried, convicted, and

sentenced on all 28 counts of Unlawful Land

Sales Practices; however, his convictions and

sentences were later reversed. His conviction

and sentence for Failure to Appear was

affirmed. (Jaffe 1). Contrary to plaintiff's asser-

tion, the Unlawful Land Sales Practices charges

were not “unfounded.” As the district court of

appeal made clear in Jaffe II, the reversals were

not based upon insufficient evidence but rather

upon the legal insufficiency of the charging doc-

ument.

Immediately upon his release from

imprisonment, Mr. Jaffe returned to Canada. In

1985, Mr. Jaffe and Mrs. Jaffe brought suit in the

Supreme Court of Ontario, Canada, against

Snow and Accredited and other defendants

seeking money damages for Mr. Jaffe’s tortious

abduction. Snow and Accredited appeared in

the action through Canadian counsel, and after

their motions to dismiss based on grounds of

want of personal jurisdiction and form non con-

veniens were denied, declined to further defend

the action. On November 22, 1990, the Canadian

court entered a separate judgment in favor of

Mrs. Jaffe only against Snow and Accredited

awarding her general damages in the amount of

$25,000 Canadian dollars; special damages in

the amount of $903,481.47 U.S. dollars and

$88,089.33 U.S. dollars and $62,458.74 Canadian

dollars, the total amount to bear interest at the

rate of 14% per annum.

(Footnotes omitted) (emphasis added?) (Appendix 1)

The court then turned to the law in which he con

cluded that there were no treaties or statutes, state or

federal, which compelled the courts of Florida to recog-

nize foreign nation judgments, nor did the full faith and

credit clause of the United States Constitution require it.

See also, Jaffe v. Snow, 610 So.2d 482 (Fla. 5th DCA 1992)

Rather, recognition or non-recognition of such

judgments in this state depends upon Florida

common law principles of judicial comity. War-

ren v. Warren, 75 So. 35 (Fla. 1917); Parker v.

Parker, 21 So.2d 141 (Fla. 1945); Ogden v. Ogden,

33 So.2d 871 (Fla. 1947); Pawley v. Pawley, 46

So.2d 414 (Fla. 1950).

The court next cited to the Florida supreme court

decision in Bechwith v. Bailey, 161 So.2d 577, 581 (Fla.

2 A Canadian has also found that Mr. Jaffe was a United

States citizen when the offenses occurred and when Mr. Jaffe

jumped bond.

1935). wherein the court, citing to the leading case from

this Court, Hilton v. Guyot, 159 U.S. 113, 16 S.Ct. 139, 40

L.Ed. 95 (1895) recognized that

- comity ... (in the legal sense) is neither a

matter of absolute obligation or of mere cour-

tesy and goodwill. It is . . . the recognition

which one nation or siate allows within its terri-

tory to the judicial acts of another nation or

state, having due regard to both international

duty and convenience, and to the rights of its own

citizens. .

(Emphasis added)

The trial court then continued its reasoning by

declaring that under Florida common law, the doctrine of

comity precluded recognition of a foreign nation judg

ment where “special reasons” exist, citing to Hilton, “a

foreign nation judgment may be contrary to a state’s

public policy if it conflicts with the state’s interest, is

inconsistent with its laws and/or is repugnant to funda-

mental notions of what is decent, equitable and just in the

forum state [cites Oomitted].” The Fifth District acknow]-

edged that in Florida in the overwhelming number of

Cases, courts recognize and enforce the judgments of

other nations. The court specifically noted that this was

particularly true of countries having a system of jurispru-

dence which has developed from the same historical roots

as our Own, such as Canada. “However, no jurisdiction

will give comity to the judgment of another nation that

offends the jurisdiction’s public policy and sense of moral

justice [citing to Restatement (Second) of the Foreign

Relations Law of the United States, section 482 (1987)].”

The Fifth District held that there were many public rea-

sons why a Florida court would refuse to recognize and

enforce the Canadian judgment.

The court then found that there were three different

special reasons as to why the Canadian judgment should

not be enforced against the defendants. First, the court

declared that Canadian tort law under which Mr. and

Mrs. Jaffe’s causes of action were brought are different

from Florida law. The trial court then cited to section

903.02 and 903.29, Florida statutes (1979) and Register v.

Benton, 75 So.2d 187 (Fla. 1975), for the proposition that

both under the common law and statutory law of Florida,

a surety such as Accredited could arrest the principal

within the state, both before and after the forfeiture of a

bail bond. The Fifth District agreed.

Additionally, under Florida common law, the surety

could delegate to another person the right to make the

arrest. The court reasoned further that had the apprehen-

sion of Mr. Jaffe by defendants’ bail recovery agents

occurred within the territorial boundaries of Florida, Mr.

and Mrs. Jaffe would have had no cause of action under

the tort laws of the state. The court continued that of even

more significance, the public policy of Florida as

expressed through its decisional and statutory law

expressly favors and sanctions the apprehension of a bail

jumper within the state by a surety or his agent.

The second special reason given is that Mr. Jaffe’s act

of failing to appear in court was a breach of his contrac-

tual obligation to Accredited under the bail agreement

and a crime against the State of Florida for which he was

duly convicted. “It was his wrongful criminal act in

jumping bail which directly caused Snow and Accredited

to commit the acts found to be tortious in Canada which

formed the basis of Mr. and Mrs. Jaffe’s Canadian action

against them.” Also important is the fact that Mr. Jaffe

declared, in the bail agreement, that his residence was

California and that he had lived there for three (3) years.

Consequently, under Mr. Jaffe’s own admission, he was

not a citizen of Canada but, rather, an American citizen

brought back to America for American justice.

The Fifth District found that Sidney Jaffe is a fugitive

from justice in the eyes of the Florida courts, having

“jumped bond” in this jurisdiction not once, but twice.

“And, there are still criminal charges pending against

him in this state from which he has fled rather than faced.

Simply stated, ‘a fugitive from justice is not entitled to

call upon the resources of court for determination of his

case.’ Garcia v. Metro-Dade Police Department, 576 So.2d

751, 752 (Fla. 3d DCA 1992). United States v. One Lot of

U.S. Currency Totalling $506,537, 628 F.Supp. 1473, 1475

(S.D. Fla. 1986). Stated another way, a fugitive from jus-

tice ‘cannot eat his cake and have it too.’ United States v.

Eng, 951 F.2d 461, 462 (2d Cir. 1991).”

In summation, the trial court declared that if Jaffe

had obtained and sought to enforce a Canadian judgment

against defendants here, to allow it would not only be

inconsistent with this state’s interest but patently inequi-

table for equity says that “no one shall be permitted to

take advantage of his own wrong, or found any claim

upon his own inequity or profit from his own crime,”

citing to Ashwood v. Patterson, 49 So.2d 848, 850 (Fla.

1951).

The Fifth District, on this issue, held as follows:

Finally, Florida has a well-established public

policy that our courts will not permit nor toler-

ate a person to benefit from his own wrongful

act. In this case, Sidney Jaffe breached his con-

tract or bond given to Accredited and accepted

by the Florida court that he would not leave his

California residence without Accredited’s per-

mission, and that he would return promptly to

face the criminal charges brought against him.

See Reese v. United States, 76 U.S. 13, 19 L.Ed.

541, 9 Wall. 13 (1869). He failed to do so.

Although his eventual forceful return by

Accredited was wrongful in Canada’s eyes, he,

too, was at fault for not honoring his bond. Two

wrongs do not make a rights [sic], and neither

wrongdoer should profit. McMichael v.

McMichael, 158 Fla. 413, 28 So.2d 692 (1947).

(Footnote omitted)

The Fifth District disposed of Ruth Jaffe’s argument

that she should not be placed in her husband's shoes for

purposes of recognition and enforcement of her judgment

as follows:

Ruth Jaffe argues she should not be placed in

her husband’s shoes for purposes of recognition

and enforcement of her judgment. However, the

nature of her cause of action is derivative and it

was necessarily born out of Sidney Jaffe’s tort

suit for wrongful kidnapping. She was not kid-

napped. Sidney was. Any loss of consortium on

her part is deemed to be a derivative cause of

action in Florida.

(Footnote omitted). In her state court appellate brief,

Ruth Jaffe admitted that her damages were those caused

nt

OT

nt

by the kidnapping of her husband by Snow and Accred-

ited.

The trial court declared that it was holding the Way it

did because of the peculiar facts and circumstances of this

case in that it fell within those very few exceptions where

an American state court should decline to enforce a for

eign nation’s judgment. (R. 109). The reason no one case

is authority for the reversing of another case is precisely

because of what the trial court ruled, i.e., that peculiar

facts and circumstances of each case are what are applica-

ble and that this one was so bizarre and unusual that it

fell within one of those very few exceptions wherein the

trial court should decline to enforce this particular for-

eign nation judgment. The Fifth District upheld the trial

court on the grounds set forth as well as on the Federal

fugitive from justice doctrine: “Appellant, on the one

hand, wields a sword against our judicial system by

escaping criminal prosecution. On the other hand, appel-

lant attempts to shield himself, with the protection of his

rights in the civil courts.”

Additional facts that were before the state courts are

also necessary in order for this Court to comprehend just

how frivolous the instant petition is and for a correct

determination as to where the equities lie in the instant

case in order to invoke the principle of comity and the

jurisdiction of this Court.

The following facts are necessary in order to show

how Mr. Jaffe’s actions have constituted an abuse of the

judicial systems in both state and federal courts

Although the instant lawsuit involved a request for the

enforcement of a foreign money judgment in favor of

10

Mrs. Sydney Jaffe, pursuant to well-established Florida

law, Mrs. Jaffe has no cause of action against these defen-

dants, because she only has a loss of consortium claim,

which is derivative of Mr. Jaffe’s claim. Mrs. Jaffe has

acknowledged that she only has a loss of consortium

claim as evidenced by her State of Claim attached as

Appendix 4. In other words, if Mr. Jaffe has no legally

enforceable claim against these defendants, then Mrs.

Jaffe likewise has no legally enforceable claim. Therefore,

a complete history of the illegal, unethical, and contemp-

tuous actions of Mr. Jaffe must be set forth in their

entirety.

Even assuming arguendo that Mrs. Jaffe had a valid

claim against these defendants, which the defendants

steadfastly maintain she does not, it would be against

public policy to enforce the money judgment simply

because of the numerous and sundry times Mr. Jaffe has

abused the judicial system. The additional fact that he is

still a fugitive from the state of Florida and, therefore,

cannot return to enforce a judgment in his own name

buttresses the respondents’ position that this Court still

should not enforce the foreign money judgment even if

Mrs. Jaffe had a valid claim.

The genesis of this action occurred in 1972 when

Continental Southeast Land Corporation bought a large

tract of Florida land, subdivided it into more than

twenty-eight hundred lots, and began selling the lots to

individuals on installment contracts payable to Continen-

tal. At the same time, Continental was borrowing from

individual investors. Jaffe v. Grant, 793 F.2d 1182, 1184

(11th Cir. 1986). Sydney Jaffe was vice-president of Conti-

nental. Through a series of transactions in 1976 and 1977,

11

Continental’s interest in the remaining land and the ven-

dee accounts were transferred to Meadow Valley

Ranchos, Inc., Ruby Mountain Construction & Develop-

ment Corp., and Atlantic Commercial Development

Corp., (collectively, “The Corporations”). Sydney Jaffe

was president of each corporation. Shortly thereafter,

Continental defaulted on payments to its investors. The

investors responded by filing suit in the Circuit Court of

Putnam County, Florida, against Continental and The

Corporations to set aside the transfers of land and the

vendee contracts as fraudulent and to appoint a receiver

for Continental. Barbara Raymond, et al. v. Continental

Southeast Land Corp., No. 78-416.

In June, 1979, Jaffe caused Continental to file a Chap-

ter XI petition under the Bankruptcy Act. Jaffe v. Grant,

supra, 793 F.2d at 1184. In January, 1980, the bankruptcy

court adjudicated Continental bankrupt and appointed

Charles Grant as trustee. After the bankruptcy court

lifted the statutory automatic Stay, the state court in the

Raymond case substituted the trustee grant for Continen-

tal and realigned him as a plaintiff. -

In March, 1981, the state court entered a final default

judgment setting aside the transfers, holding The Corpo-

rations liable and was ordered to return the sums col-

lected from the contract vendees and Ordering an

accounting. The Corporations appealed the state Court’s

March, 1981, order. In the interim, they refused to make

the accounting and were held in contempt by the trial

court. Note that this is the first instance of contempt.

Because of their continuing contempt, the appellate

court dismissed The Corporations’ appeal of the state

12

Court’s March, 1981, order. Atlantic Commercial Develop-

ment Corp. v. Raymond, No. 81-560 (Fla. 5th DCA Sept. 10,

1981). Note that this is the second occasion that prompted

Jaffe being held in contempt.

In August of 1980 when Jaffe was arrested in Florida

and charged with twenty-eight (28) counts of unlawful

land sales practices, he obtained bail in the amount of

$137,500 from Accredited Surety & Casualty Company

and was released from custody. He then returned to his

home in Toronto, Ontario, Canada. Jaffe did have a home

in Canada but did not become a citizen until after he had

become a fugitive from the State of Florida. Mr. Jaffe did

not become a citizen of Canada until 1981. Mr. Jaffe had

claimed three (3) years of residence in San Francisco on

the bail bond application with Accredited.

Jaffe failed to appear for his pre-trial conference in

his criminal case and the judge issued a warrant for his

arrest. On May 18, 1981, his case was called for trial and

again Jaffe failed to appear. A second arrest warrant was

issued. The judge also ordered that the bond be estreated

and directed the State attorney to immediately commence

extradition proceedings to procure Jaffe’s return from

Canada. The State Attorney submitted two applications

for extradition to the Governor of Florida, both of which

were disapproved as to form by the Attorney General of

Florida. The reason they were disapproved is that the

crimes were not extraditable.

On May 15, 1981, the eve of his criminal trial, Jaffe

and The Corporations filed an action in the United States

District Court for the Middle District of Florida charging

that trustee Grant and others had conspired to violate

’

13

their civil rights and sought to restrain the state criminal

case. Trustee Grant responded with a counterclaim seek-

ing enforcement of the Raymond judgment foran account-

ing against Jaffe individually, as well as against The

Corporations on the ground that The Corporations were

merely his alter egos.

During the course of these proceedings, Jaffe began

his repeated actions of failing to appear at scheduled

depositions. Trustee Grant moved for sanctions for Jaffe’s

failure to appear at scheduled depositions, and the Dis-

trict Court granted the motion and awarded attorney

fees. Jaffe v. Grant, supra, 793 F.2d at 1185. Note that this is

the third occasion of contempt. When the attorney fees

were not paid as ordered, Trustee Grant filed a renewed

motion for sanctions, resulting in an additional award of

fees incurred in connection with Grant’s seeking Compli-

ance with the first order. Note that this is the fourth

occasion of contempt.

During this time, Jaffe, et al. had also failed to timely

comply with the court’s order directing them to respond

to the trustee’s interrogatories and request for produc-

tion. Jaffe, et al. did respond four days late, but in an

incomplete and evasive manner, refusing to answer cer-

tain interrogatories and to produce certain documents.

The court entered an order compelling them to produce a

document and answer to interrogatories. Their responses

were again non-responsive, evasive and incomplete.

Again Grant moved for sanctions, this time asking that

Jaffe, et al.’s answer to the counterclaim be stricken. The

court granted the trustee’s motion for sanctions “in light

of [plaintiffs’] flagrant and continued failure to comply with

discovery requests and court orders.” (emphasis added)

14

Note that this is the fifth occasion of contempt. When

Jaffe, et al. took no action to cure their failure to comply

with the court’s orders, the District Court struck Jaffe, et

al.’s answers to the trustee’s counterclaim and enter judg-

ment by default. Id. Note that these are the sixth and

seventh occasions of contempt.

In the Raymond action, Grant served a request for

admission that The Corporations had received more than

three million dollars from contract vendees at Continen-

tal. Again, The Corporations evaded answering and

Grant moved to strike their answers to discovery requests

as a sanction. The state court struck The Corporations’

responses because of their evasive nature and deemed the

request with respect to the three million dollar figure

admitted. Note once again that this is the eighth occasion

of contempt. On appeal of that ruling the Florida appel-

late court affirmed. Ruby Mountain Construction & Devel-

opment Corp. v. Raymond, 409 So.2d 525 (Fla. 5th DCA

1982).

The state trial court then granted the trustee’s motion

for summary judgment and entered a supplemental final

judgment in the amount of three million dollars plus

interest. The Corporations appealed, but their appeal was

dismissed as frivolous, with attorneys’ fees for a bad faith

appeal being assessed. Note that this is the ninth instance

of contempt. Atlantic Commercial Development Corp. v. Ray-

mond, No. 82-724 (Fla. 5th DCA June 30, 1982). Grant now

has a five million dollar judgment in its favor against

Jaffe in Canada.

Jaffe, however, did not seem to learn his lesson about

the consequences of his failure to cooperate in discovery.

15

In the second lawsuit filed by Sydney L. Jaffe and Ruth

M. Jaffe, defendant Accredited Surety & Casualty Com-

pany, Inc., moved for sanctions pursuant to Rule 37(d)

Federal Rule of Civil Procedure on August 19, 1986. Note

that this is the tenth occasion of contempt. Typical of the

plaintiff, he moved to dismiss the action without preju-

dice pursuant to Rule 41(a)(2), Federal Rule of Civil Pro-

cedure on August 29, 1986. No. 85-1128-CIV-J-16 (United

States District Court, Middle District of Florida, Jackson-

ville Division). (Appendix 3). Although the district court

concluded that the actions should be dismissed, the court

declared that it would be inclined to grant Accredited’s

request that the cause be dismissed with prejudice for the

plaintiffs’ failure to cooperate in discovery. Id. It should

be noted that “Plaintiffs” is in the plural and includes

both Sydney L. Jaffe and the instant plaintiff, Ruth M.

Jaffe. The order of the court entered on November 5,

1986, specifically and unequivocally declared:

The court would be inclined to grant said

motion and dismiss this action with prejudice in

light of plaintiff’s flouting of the authority and

jurisdiction of this court and the Federal Rules

of Civil Procedure. See, also, Jaffe v. Grant, 793

F.2d 1182, 1189-90 (11th Cir. 1986).

(Appendix 3). Plaintiffs unjustifiably failed to appear at

depositions noticed by Accredited and scheduled to take

place in Jacksonville, Florida. See, Rule 3.04(c), Local Rules

of the United States District Court for the Middle District of

Florida. Further, plaintiffs defied the court’s order to show

cause entered on October 3, 1986, and failed to appear at

the aforementioned hearing. In spite of plaintiff’s con-

duct, however, the court concluded that it was divested

16

of jurisdiction to entertain Accredited’s motion for sanc-

tions when plaintiffs filed on August 29, 1986, their notice

of dismissal pursuant to Rule 41(a)(1), Fed. R. Civ. P., as to

defendants, Hank M. Snow, Timm Johnsen, Daniel J. Kear,

and Joseph Miller. This is the eleventh instance of con-

tempt. Id.

The state courts based their decisions on Mr. Jaffe’s

conduct and that is the focus this Court should take.

Whether or not Kear and Johnsen were criminally liable

for the kidnapping of Mr. Jaffe has already been tried and

determined and is not relevant in these proceedings

except as background. Mr. Jaffe’s conduct is what is at

issue here since a money judgment awarded his wife for

loss of consortium is sought to be enforced on grounds of

equity and justness.

But now back to the facts. The District Court for the

Middle District of Florida in Case No. 84-3747, the Hon-

orable John H. Moore, II, made statement from the bench

during a status conference. In particular, the court

referred to Jaffe, et al.’s litigation tactics and their inces-

sant changing of attorneys. Jaffe sought to recuse Judge

Moore based on those statements. The Eleventh Circuit,

however, held that the trial court did not abuse its discre-

tion in denying Jaffe’s recusal motion as the court’s state-

ments reflected its perception of the underlying facts of

the case, Jaffe, et al.’s litigation tactics, and their incessant

changing of attorneys. The Eleventh Circuit ruled that the

district court’s statements were based on knowledge the

court had gained in a purely judicial context by presiding

over this action and the habeas corpus proceeding filed

by the Canadian government. Jaffe v. Grant, supra, 793

F.2d at 1189-90.

a

17

Jaffe had also alleged as an error in Jaffe v. Grant that the

“3 sanctions imposed for Jaffe, et al.’s refusal to comply with

) discovery orders were Draconian sanctions and unwar-

; ranted. The District Court had entered an order striking their

answer and defenses to the trustees’ counterclaim. Note that

this is occasion for contempt number twelve.

As declared by the Eleventh Circuit:

> Jaffe, et al. proffered a laundry list of reasons why

the sanctions imposed below are too harsh. Their

first argument, perhaps a nadir of this frivolous

collection, is that the deterrent value of this sanc-

: tion could have been substantially achieved by use

j of one less drastic. At oral argument, counsel sug-

f gested that an award of costs might have been

appropriate. However, such a suggestion flies in

the fact of the record as well as the facts found by

the District Court:

It should be further noted that sanctions in the

form of attorney’s fees have been imposed on

plaintiffs during the course of this litigation.

On January 25, 1982, attorney’s fees were

taxed against plaintiffs for their unjustified

failure to attend scheduled depositions. Plain-

tiffs did not timely pay defendants the fees

imposed by the court as sanctions and, there-

fore, further sanctions were imposed against

plaintiff on February 16, 1982.

t

It is abundantly clear to the court that the lesser

sanctions contemplated by Rule 37, Fed.R.Civ.P,

: are not effective in compelling plaintiffs to conduct

discovery in a timely and responsive manner

3

Id.

18

In the same case, typical of an “innocent” criminal,

Jaffe sought to place the blame for their long-standing

refusal to comply with discovery on one of their former

attorneys. Jaffe, et al. also argued that their failure to

comply with the court’s orders were due to inability.

Purportedly, Jaffe was prevented from complying by his

health problems and, later, incarceration at various cor-

rectional institutions. “However, neither Jaffe’s alleged

problems can excuse repeated non-responsive, evasive

and incomplete answers to interrogatories and request

for admissions. For example, Jaffe’s alleged problems

with his health, incarceration and attorneys cannot

excuse the intentional misconduct of producing docu

ments with portions torn off.” Id. at 1190.

While Jaffe was incarcerated for his conviction for

failure to appear at trial, he was indicted on one count of

organized fraud, stemming from the same land sale activ-

ities. He was released from custody in October, 1983 and

allowed to post bond on the fraud charge. He returned to

Canada once again and once again failed to appear for

trial on this charge. This is the only offense that comes

within thé extradition proceeding between Canada and

the U.S. and the instant respondents were not involved in

the posting of a bond for that offense. Consequently, the

treaty has no application to the instant proceeding.

9 *

19

REASONS FOR DENYING THE PETITION

I. The Florida judgment below does not conflict with

any international agreement between the United

States and Canada nor any federal interest that

would require the Florida court grant comity by

enforcing the petitioner’s judgment.

As made clear in the Counterstatement of the Facts,

Mr. Jaffe was a United States citizen when brought back

to the United States to face the criminal charges brought

against him. The Canadian courts have also declared that

to be a fact. (Appendix 4, at App. 6). Also made abun-

dantly clear is the fact that the violations of the Florida

Uniform Land Sales Practices Law committed by Mr. Jaffe

are not extraditable offenses under the treaty with Can-

ada. Both state courts found accordingly. The fraud count

against Mr. Jaffe was the subject of a subsequent indict-

ment against Mr. Jaffe. Although bonded out on the fraud

count by another bonding company, for which Mr. Jaffe

also jumped bond, whether or not the fraud count is

extraditable is totally irrelevant to these proceedings or

any other proceedings to which the respondents are par-

ties. Mrs. Jaffe attempted to convince the Florida state

courts of her factually inaccurate statements in order to

commit a fraud on those courts but to no avail. Her

fraudulent attempts should likewise be to no avail in this

Court. Consequently, the only principle of law relevant to

these proceedings is the principle of comity.

A foreign nation judgment is unenforceable as

against public policy to the extent that it is repugnant to

fundamental notions of what is decent and just in the

state where enforcement is sought. Ackermann v. Levine,

788 F.2d 831, 841 (2d Cir. 1986). In the classic formulation,

20

a judgment that tends clearly to undermine the public

interest is against public policy. Id. at 841. Accord, Tahan v.

Hodgeson, 662 F.2d 862, 864 (D.C. Cir. 1981); Overseas Inns

S.A.P.A. v. United States, 465 FSupp. 968, 972 (N.D. Tex.

1988) (it is a settled principle of comity that deference

need not be given to foreign judgments in face of signifi-

cant countervailing public policy reasons); Norkan Lodge

Co., Ltd. v. Gillum, 587 F.Supp. 1457, 1461 (N.D. Tex 1984).

In Hilton v. Guyot, supra, the court defined the doctrine of

comity as follows:

Comity in the legal sense, is neither a matter of

absolute obligation on the one hand nor of mere

courtesy and good will upon the other, but is

within the recognition which one nation allows

within its territory to the legislation, execution

or judicial acts of another nation, having due

regard to both international duty and conve-

nience, and to the rights of its own citizens or of

other persons who are under the protection of its

laws.

159 U.S. at 163-64, 16 S.Ct. at 143, 40 L.Ed. 95 (emphasis

added). “ ‘Comity’ summarizes in a brief word a complex

and elusive concept .. . the degree of difference that a

domestic form must pay to the act of a foreign govern-

ment not otherwise binding on the forum.” Laker Airways,

Ltd. v. Sabena, World Airlines, 731 F.2d 909, 937 (D.C. Cir.

1984). As declared by the court in Overseas Inns, the

search for finding precedent in comity cases is limited by

the fact-oriented nature of the cases decided. Overseas

S.A.P.A. v. United States, supra, 685 FSupp. 971. Conse-

quently, the facts of each particular case are of paramount

importance.

—

21

Based on the above holdings and clear expressions by

this Court it defies logic for the petitioner to argue that

this Court or any state court was either obligated to

enforce a Canadian judgment or that there are overriding

federal interests that require the Florida courts to grant

comity by enforcing the petitioners’ judgment.

The courts below very carefully limited their rulings

in the case to the facts presented. The trial court began its

closing by declaring that “it should be stated that nothing

in this judgment should be construed as condoning the

acts of Snow and Accredited and their agents which

caused the events in Canada. Now that the Kear case is on

the books, the criminal laws of Canada and the extradi-

tion treaty between our two countries should provide a

sufficient deterrent against that type of activity in the

future.” Any argument advanced by Jaffe that this case

has wide-reaching implications is worthless in light of the

state courts’ disclaimers.

The respondents submit that it is of paramount

importance for this Court to remember that none of the

offenses for which the respondents bonded Mr. Jaffe out

of jail are extraditable offenses listed in the treaty

between the United States and Canada. Although fraud is

an extraditable offense under the treaty, Mr. Jaffe was not

charged with fraud until subsequent to Mr. Jaffe’s return

to the United States by Kear and Johnsen. Mr. Jaffe subse-

quently jumped bond when he was bonded out for the

fraud offenses but that is a different story. The fact

remains that the charges for which Mr. Jaffe was charged

and for which the respondents posted his bond were not

extraditable offenses under the treaty between the United

States and Canada. Therefore, the respondents are

|

22

requesting Rule 11 sanctions be imposed against the peti-

tioner and her attorneys because this fact alone makes the

entire petition frivolous. That fact should have been

known by the petitioner’s attorneys as it is a fact pub-

lished in an Eleventh Circuit opinion. Jaffe v. Grant, 793

F.2d 1182 (11th Cir. 1986). See also, Jaffe v. Sanders, 463

So.2d 318 (Fla. 5th DCA 1985).

Rather than the Fifth District’s “opinion offerling] a

safe haven from civil liability for those engaged in trans-

port or kidnappings,” the opinion tells citizens of the

United States that they may not commit crimes in the

United States, flee to a foreign country, take up residency,

and attempt to come back to the state wherein the crimes

occurred for which that citizen never paid his dues to

society and expect to reap the benefits from his own

wrongdoing. Surely such a message is in keeping with

this Court’s notion of what is right and just. Although the

Canadian government may have been upset when the

initial taking of Mr. Jaffe occurred, a recent Canadian

court decision states Canada’s position now that all the

facts are known:

We think the appeal from the sentences imposed

by the trial judge should succeed. The trial

judge rightly considered the offence to be a

grave affront to the sovereignty of this country.

Although it is not excused, the gravity of the

affront is mitigated by the circumstances of the

offence. In consideration of the surety putting

up $137,000 U.S. to secure his freedom from jail

and after being told by the surety that if he did

not appear in court he would come and get him

anywhere, Jaffe agreed in writing that the surety

would have the right ‘to forthwith apprehend,

23

arrest and surrender’ him. In violation to his

obligations to the court which had released him

from jail and to the prejudice of the surety’s

$137,000, Jaffe, who was then an American citizen,

absconded and fled to this country where he

managed to obtain Canadian citizenship. There

is nothing favorable that can be said about his

conduct.

(Appendix 4, at App. 6) (emphasis added).

A foreign judgment under comity principles is unen-

forceable as against public policy to the extent that it is

repugnant to fundamental notions of what is decent and

just in the state where the enforcement is sought. A

judgment that tends clearly to undermine the public

interest is against public policy. Applying those princi-

ples to the instant case, it defies all that is right and just

to even give credence to Mrs. Jaffe’s claim, much less

even consider enforcing it.

II. The Florida judgment below does not violate the

petitioner’s rights under the Fourteenth Amend-

ment of the Constitution.

Mrs. Jaffe’s claims against the respondents were

based solely on the alleged kidnapping of Mr. Jaffe as

made abundantly clear in her statement of claim filed

against the respondents in the Canadian court. Mrs. Jaffe

has not, as well as she cannot, claim any actions of the

respondents aimed directly at her; she has only alleged

that she suffered damages as a result of the actions by the

respondents against Mr. Jaffe. Consequently, her claims

against the respondents are derivative of Mr. Jaffe’s.

24

The issue of whether or not Mrs. Jaffe’s claim is

derivative of Mr. Jaffe’s is a matter of state law. Under

well-established Florida law, Mrs. Ruth Jaffe’s claim for

loss of consortium is strictly and solely derivative of Mr.

Jaffe’s. Davis v. Afbll, 328 So.2d 204 (Fla. 1st DCA 1976):

Gates v. Foley, 247 So.2d 40 (Fla. 1971). As declared by the

Davis court, quoting to the Gates’ opinion:

The derivative cause of action for loss of consor-

tium is subordinate to the primary action, and

being so, that a judicial determination in the

primary action as to the question of liability is

binding upon the subordinate action for loss of

consortium.

As Mr. Jaffe, under public policy reasons, would be pre-

cluded from having a foreign judgment enforced in his

name, likewise Mrs. Jaffe is foreclosed by those same

public policy reasons. Consequently, there is no federal

question involved in the instant case. The cases relied on

by the petitioner in her petition give absolutely no appli-

cation to the instant case.

Mrs. Jaffe was not denied access to the courts. She

had and took advantage of access to the courts but is

simply complaining because she did not receive the deci-

sion she sought. One does not have a fundamental and/

or constitutional right to a decision in their favor.

She additionally was not deprived a fundamental

right — that of marital association — because of the alleged

kidnapping of Mr. Jaffe. Mr. Jaffe is the one who deprived

Mrs. Jaffe of marital association by committing crimes in

the state of Florida and being jailed therefore. If Mr. Jaffe

had stayed in the state of Florida the way he contracted

—

25

with respondents that he would, he would be incarcer-

ated and would consequently have deprived Mrs. Jaffe of

marital association.

Further, the respondents submit that it is ludicrous to

suggest that Mrs. Jaffe was deprived of her liberty and

property interests without due process of law. The mere

fact that a person is unsuccessful in court in a matter

involving life, liberty, or property does not show that

there was a violation of the due process guaranty. Worces-

ter County Trust Co. v. Riley, 302 U.S. 292, 58 S.Ct. 185, 82

L.Ed. 268 (1937). The Fourteenth Amendment does not

raise a federal question in every case to test the justice of

a decision. New York & N.E.R. Co. v. Bristol, 151 U.S. 556,

14 5.Ct. 437, 38 L.Ed. 269 (1893). Mrs. Jaffe has been fully

heard in the regular course of judicial proceedings. The

extent to which a decision is erroneous or the fact that it

is contrary to previous decisions has been said to be

immaterial. Patterson v. Colorado, 205 U.S. 454, 27 S.Ct.

956, 51 L.Ed. 879 (1907). Of course, the state court’s

decision is neither erroneous nor contrary to previous

decisions.

The respondents submit that Mrs. Jaffe did not suffer

a violation of any of her individual rights. As set forth in

her statement of claim, Mrs. Jaffe alleged that her dam-

ages were caused by Mr. Jaffe’s wrongful imprisonment.

(Appendix 3, at p.24). Of course, Mr. Jaffe was not wrong-

fully imprisoned. The cases relied on by the petitioner

have no application whatsoever to the case before this

Court. Mrs. Jaffe was not denied the right to marry.

Zablocki v. Radhile, 434 U.S. 374, 98 S.Ct. 673, 54 L.Ed.2d

618 (1978). Nor were her rights as a parent completely

and irrevocably severed. Santosky v. Kramer, 455 US. 743,

a

26

102 S.Ct. 1388, 71 L.Ed.2d 599 (1981). Mrs. Jaffe certainly

was not convicted of a crime of having her son and

grandson plus second grandson who is the cousin of first

grandson living with her. Moore v. City of East Cleveland,

Ohio, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977).

None of Mrs. Jaffe’s rights were violated as she

sought damages that were exclusively and solely deriva-

tive of Mr. Jaffe’s. Mrs. Jaffe set forth claims as follows:

62. The plaintiff Ruth Jaffe pleads that she has

expended considerable time and effort to

redress the wrongful actions of the defendants

and in the administration of the affairs of the

plaintiff Sidney Jaffe during the period of his

wrongful imprisonment, and incurred expense

in travel to and from Florida and otherwise to

visit and to obtain the release of the plaintiff

Sidney Jaffe from his wrongful imprisonment.

63. The plaintiff Ruth Jaffe further pleads that

by reason of the foregoing she has suffered and

continues to suffer serious damage, by reason of

her mental and physical suffering, loss of

income, the aforesaid expenditures, and the loss

of guidance, care and companionship of the

plaintiff Sidney Jaffe during the period of his

imprisonment. The plaintiff Ruth Jaffe pleads

that she has suffered and continues to suffer this

damage in the City of Toronto.

Id. (Appendix 5)

For Mrs. Jaffe to now come before this Court and

allege that her claims are not derivative of Mr. Jaffe’s is as

fraudulent as the other ground given for enforcing Mrs.

Jaffe’s judgment. Such should not be tolerated by this

Court. Any monies that Mrs. Jaffe expended in traveling

27

to and from Florida to visit and obtain the relief of the

plaintiff Sidney Jaffe should have been expended to visit

him while in jail where Mr. Jaffe should be. Those dam-

ages relate solely to the alleged wrongs committed by the

respondents to Mr. Jaffe, not Mrs. Jaffe.

The further claims as to damages are for loss of

consortium which likewise is derivative of Mr. Jaffe’s

alleged kidnapping. The Fifth District summarized Mrs.

Jaffe’s loss of consortium claim as follows:

The fugitive from justice doctrine bars any

claim or defense that is solely derivative of the

fugitive’s claim. United States v. One Parcel of

Real Estate at 7707 S.W. 74th Lane, 868 F.2d at

1217 n.5; United States v. $129,374 in United

States Currency, 769 F.2d 583 (9th Cir. 1985), cert.

denied, 474 U.S. 1086, 106 S.Ct. 868, 88 L.Ed.2d

901 (1986). In $129,374 in United States Currency,

Gerald Geiger had been appointed conservator

of his brother Lewis’ estate and attempted to

intervene in forfeiture proceedings involving

property belonging to Lewis, who was a fugitive

on the related criminal charges. The court held

that if Lewis, as a fugitive from justice, were

deprived of presenting any claim or defense in

the action as a result of his fugitive status, the

conservator of his estate must likewise suffer

the same consequences when he seeks to

advance the same claim or defense.

Here, Jaffe fled the jurisdiction of Florida in

his land fraud case and did not appear at his

second fraud trial. The fugitive from justice doc-

trine would bar any of Jaffe’s claims for dam-

ages from his return to Florida by his

bondsmen. Mrs. Jaffe’s claims are derivative of

28

her husband’s and likewise are barred under the

fugitive from justice doctrine.

Further, if Ruth Jaffe is allowed to recover

the expenses and claims she sought and

obtained in the Canadian judgment, it would

permit her to profit from a wrongdoer'’s activity.

The expenses of retaining counsel to defend

Sidney in Florida and her visitation in Florida

should rightfully have been spent, because

Sidney should rightfully have returned to this

jurisdiction to stand trial. To allow her to collect

on any of these items as “damages” would be to

reward the bondjumper. In addition, any loss of

consortium on her part was in the eyes of the

Florida courts a rightful loss, because Sidney

should have rightfully been separated from her

while he stood trial and served time in prison

after his conviction. Her loss of consortium was

thus the consequence of her husband’s own

wrong and she should not be allowed to benefit

from it. See Ashwood v. Patterson, 49 So.2d 848

(Fla. 1951).

29

CONCLUSION

For the foregoing reasons the petition for writ of

Certiorari should he denied and sanctions imposed. In

Mrs. Jaffe’s brief before the Fifth District Court of Appeal,

she admitted that her damages were those caused by the

kidnapping of her husband by Snow and Accredited.

Respectfully submitted,

SHARON LEE STEDMAN, Eso.

Florida Bar No. 0303781

SHARON LEE STEDMAN, P.A.

1516 E. Hillcrest St.

Suite 200

Orlando, Florida 32803

(407) 894-7844

E. THom Rumsercer, Eso.

Florida Bar No. 0069480

RUMBERGER, Kirk & CaLpwe t, P.A.

201 S. Orange Ave., Suite 300

Orlando, Florida 32801

(407) 872-7300

Attorneys for Respondents

App. 1

APPENDIX 1

IN THE NINTH JUDICIAL CIRCUIT,

IN AND FOR ORANGE COUNTY,

FLORIDA

CASE NO. CI 91-1593

RUTH JAFFE,

Plaintiff,

vs.

HARDY M. SNOW, JR., and

ACCREDITED SURETY &

CASUALTY COMPANY,

INC.,

Defendants.

/

FINAL SUMMARY JUDGMENT FOR DEFENDANTS

This is an action brought by Ruth Jaffe (“Mrs. Jaffe”),

a Canadian resident, for recognition and enforcement of

her Canadian money judgment against Hardy M. Snow,

(“Snow”) and Accredited Surety & Casualty Company,

Inc. (“Accredited”), a citizen and resident of the State of

Florida and a Florida corporation having its principal

place of business in Orange County, Florida.

This case came on for hearing on June 24, 1991, on

the parties’ cross motions for summary judgment. The

Court reviewed the pleadings, the Canadian judgment

and complaint and the motions; listened carefully to the

arguments of counsel; has read the legal memoranda

furnished and studied many of the authorities cited

herein, and has given the case careful consideration.

|

App. 2

Under Florida law, a party may be granted a sum-

mary judgment if there is no genuine issue of material

fact as demonstrated by the record made for the summary

judgment hearing and such party is entitled to judgment

as a matter of law on the undisputed material facts.

Fla.R.Civ.P. 1.510(c); Carpineta v. Shields, 70 So.2d 573 (Fla.

1954). Since Florida courts have granted summary judg-

ment enforcing foreign nation judgments, see e.g., Willson

v. Willson, 55 So.2d 905 (Fla. 1952); Mathor v. Lloyds Under-

writers, 174 So.2d 71 (Fla. 3rd DCA 1965); Bullen v. Her

Majesty's Govt. of the U.K., 553 So.2d 1344 (Fla. 4th DCA

1989), rev. den. 567 So.2d 434 (Fla. 1990), it follows that

summary judgment can be granted refusing to enforce

such a judgment in a proper case. Indeed, plaintiff states

that “(a)ll the parties agree that the question of enforce-

ment of Mrs. Jaffe’s Canadian judgment is a matter of law

for the Court.” (plaintiff’s supporting memorandum, p.2)

For the purpose of stating the undisputed material

facts in this judgment, this Court has relied upon portions

of plaintiff’s complaint, motion, supporting memoran-

dum, appendices and facts appearing in three reported

appellate opinions: Jaffe v. State, 438 So.2d 72 (Fla. 5th

DCA 1983) (“Jaffe I”); Jaffe v. Sanders, 463 So.2d 318 (Fla

5th DCA 1985) (“Jaffe II”); and Kear v. Hilton, 699 F.2d 181

(4th Cir. 1983).

The material undisputed facts necessary for the dis-

position of the cross motions are as follows. In 1980,

Sidney L. Jaffe (“Mr. Jaffe”), a U.S. citizen, was charged in

the Circuit Court of Putnam County, Florida, with 28

counts of violations of the “Florida Uniform Land Sales

Practices Law”, Section 498.033(3), Florida Statutes

(1979). A violation of this statute is a felony crime. After

App. 3

his arrest, Mr. Jaffe posted a $137,500.00 bail bond written

by Accredited in order to secure his release from jail, and

immediately went to Canada where he and Mrs. Jaffe

took up residence. On the day he was scheduled for trial,

Mr. Jaffe failed to appear. A motion for continuance filed

by his attorneys was denied, a warrant was issued for his

arrest, and Accredited’s bail bond was forfeited.! The

prosecuting attorney then filed a criminal charge of Fail-

ure to Appear, Section 843.15(1)(a), Fla. Statutes (1979). A

violation of this statute is a felony crime. The prosecuting

attorney subsequently made two applications to the Flor-

ida Governor seeking to extradite Mr. Jaffe from Canada,

both of which applications were denied. The record does

not show the basis for the denials.2 Mr. Jaffe remained in

Canada and “exhibited a determination to remain there in

violation of his undertaking to return to Florida to

answer the charges.” Kear at 181,2.

Snow and Accredited then hired two professional

bail recovery agents , Johnsen and Kear, to go to Canada,

apprehend Mr. Jaffe and surrender him to the Putnam

County Sheriff, which they did.3 Mr. Jaffe was tried,

convicted, and sentenced on all 28 counts of Unlawful

Land Sales Practices; however, his convictions and sen-

tences were later reversed. His conviction and sentence

for Failure to Appear was affirmed. Jaffe I]. Contrary to

plaintiff’s assertion, the Unlawful Land Sales Practices

charges were not “unfounded”. As the District Court of

Appeal made clear in Jaffe II, the reversals were not based

upon insufficient evidence but rather upon the legal

insufficiency of the charging document.

Immediately upon his release from imprisonment,

Mr. Jaffe returned to Canada. In 1985, Mr. Jaffe and Mrs.

App. 4

Jaffe brought suit in the Supreme Court of Ontario, Can-

ada, against Snow and Accredited and other defendants

seeking money damages for Mr. Jaffe’s tortious abduc-

tion.4 Snow and Accredited appeared in the action

through Canadian counsel, and after their motions to

dismiss based on grounds of want of personal jurisdiction

an forum non conveniens were denied, declined to fur-

ther defend the action. On November 22, 1990, the Cana-

dian court entered a separate judgment in favor of Mrs.

Jaffe only5 against Snow and Accredited awarding her

general damages in the amount of $25,000 Canadian dol-

lars; special damages in the amount of $903,481.47 U.S.

dollars and $88,293.56 Canadian dollars; pre-judgment

interest in the amount of $498,089.33 U.S. dollars and

$62,458.74 Canadian dollars, the total amount to bear

interest at the rate of 14% per annum.

Turning now to the law, this Court concludes that

there are no treaties or statutes, state or federal, which

compel the courts of Florida to recognize foreign nation

judgments, nor does the full faith and credit clause of the

United States Constitution require it. Rather, recognition

or nonrecognition of such judgments in this state

depends upon Florida common law principles of judicial

comity. Warren v. Warren 75 So.35 (Fla. 1917); Parker v.

Parker, 21 So.2d 141 (Fla. 1945); Ogden v. Ogden, 33 So.2d

871 (Fla. 1947); Pawley v. Pawley 46 So.2d 464 (Fla. 1950).

In Beckwith v. Bailey, 161 S0.577,581 (Fla. 1935), the

Florida Supreme Court, citing the leading United States

Supreme Court case of Hilton v. Guyot, 159 U.S. 113, 16

S.Ct 139, 40 L.Ed. 95 (1895), recognized that “. . . com-

ity .. . (in the legal sense) is neither a matter of absolute

sblignion or of mere courtesy and good will. It is... the

EEE

|

App. 5

recognition which one nation or state allows within its

territory to the. . . judicial acts of another nation or state,

having due regard to both international duty and conve-

nience, and to the rights of its own citizens... . ”

In Warren, the Florida Supreme Court adopted the

general statement of conditions for recognition enunci-

ated in Hilton, which are that “(t)here has been full

opportunity for a full and fair trial abroad before a court

of competent jurisdiction, conducting the trial upon regu-

lar proceedings, after due citation or voluntary appear-

ance of the defendant, and under a system of

jurisprudence likely to secure an impartial administration

of justice between the citizens of its own country and

those of other countries, and there is nothing to show

either prejudice in the court or in the system of law under

which it is sitting, or fraud in procuring the judgment, or

any other special reason why the comity of this nation should

not allow it full effect... .” Waren, 75 So. at 44; Hilton, 159

U.S. at 202-03 (emphasis supplied).

Quoting with approval from several treatises, the

Hilton court recognized the principles that “ ‘(e)very

nation must be the final judge for itself, not only of the

nature and extent of the duty (to give effect to foreign

nation judgments), but of the occasions on which its

exercise may be justly demanded’ ”, 159 U.S. at 109; and

that “’. . . the tribunal in which the suit is brought, or

from which execution is sought, is, on principle, at liberty

to examine into the merits of such judgment, and to give

effect to it or not, as may be found just and equitable’.”

Id.

———————————

App. 6

Defendants concede the authenticity of the Canadian

judgment and compliance with due process conditions

leading to its rendition. They do not claim prejudice or

fraud. However, they raise several defenses, although

inartfully, none of which have merit® save one — that Mrs.

Jaffe’s judgment should be refused recognition on public

policy grounds.

Under Florida common law, the doctrine of comity

precludes recognition of a foreign nation judgment where

“special reasons” exist. Hilton. One of those special rea-

sons is that such a judgment is contrary to the public

policy of Florida. Id. A foreign nation judgment may be

contrary to a state’s public policy if it conflicts with the

State’s interests, is inconsistent with its laws and/or is

repugnant to fundamental notions of what is decent,

equitable and just in the forum state. Id. See also Ackerman

v. Levine, 788 F.2d 830,841-2 (2d Cir. 1986) (“A judgment is

unenforceable as against public policy to the extent that is

it ‘repugnant to fundamental notions as to what is decent

and just in the State where enforcement is sought.’ ”)

Tahan v. Hodgson, 662 F.2d 862,864 (D.C.Cir. 1981);

Restatement 2d Conflict of Laws, Sec. 117, comment c

(1971); Reese, Judgments Rendered Abroad, 50 Columbia

L. Rev. 783,797 (1950) (“. . . (o)ur courts should not be

required to enforce a judgment based upon a cause of

action which offends against our notions of what is

decent and just, or which offends against our laws”).

Two cases have been cited from time to time by

courts and commentators as examples of the application

of these principles. In De Briemont v. Penniman, 7 Fed.

Cas. 309, No. 3, 715 (C.C.S.D.N.Y. 1873), a Federal Circuit

Judge refused to enforce a French decree requiring a U.S.

App. 7

citizen to support his adult French son-in-law. In In re:

Estate of Davis, 219 N.Y.S.2d 533 (Sup. Ct. 1961), affirmed

227 N.Y.S.2d 894 (1962), the New York Court denied

recognition to an Italian judgment which contravened a

New York statute disallowing entry of judgments against

persons who died during the litigation.

Canadian tort law under which Mr. and Mrs. Jaffe’s

causes of action were brought is different from Florida

law. Both under the common law and Statutory law of

this state, a surety such as Accredited may arrest the

principal within the state, both before and after the forfei-

ture of a bail bond. Register v. Benton, 75 So.2d 187 (Fla.

1975); Sections 903.02 and .29, Florida Statutes (1979).

Under Florida common law, the surety may delegate to

another person the right to make the arrest (but if the

surety delegates a law enforcement officer, then the pro-

cedure set forth in Section 903.29 must be followed).

Register. “One under bail is in the vicarious custody of his

bondsman whose ‘dominion is a continuance of the origi-

nal imprisonment, and the principal may be apprehended

by his bondsman even under extreme circumstances.’

Taylor v. Taintor, 16 Wall 366 83 U.S. 366, 21 L.Ed. 2d

287....” Id. at 188. Consequently, had the apprehension

of Mr. Jaffe by defendants’ bail recovery agents occurred

within the territorial boundaries of Florida, Mr. and Mrs.

Jaffe would have had no cause of action under the tort

law of this state. Of even more significance, the public

policy of Florida as expressed through its decisional and

Statutory law expressly favors and sanctions the appre-

hension of a bond jumper within the state by his surety or

its agent.

App. 8

Furthermore, Mr. Jaffe’s act of failing to appear in

court was a breach of his contractual obligation to

Accredited under their bail agreement and a crime

against the State of Florida for which he was duly con-

victed. It was his wrongful criminal act in jumping bail

which directly caused Snow and Accredited to commit

the acts found to be tortious in Canada which formed the

basis of Mr. and Mrs. Jaffe’s Canadian action against

them. If Mr. Jaffe had obtained and sought to enforce a

Canadian judgment against defendants here, to allow it

would not only be inconsistent with this State’s interests

but patently inequitable, for Equity says that that [sic]

“no one shall be permitted to take advantage of his own

wrong, or found any claim upon his own inequity, or

profit from his own crime.” Ashwood v. Patterson, 49 So.2d

848, 850 (Fla.1951).

Finally, since under principles of comity public policy

reasons would foreclose enforcement of any judgment

Mr. Jaffee [sic] has obtained or might obtain in the Cana-

dian action, it logically follows that the same is true of

Mrs. Jaffe’s judgment. This is so because the claim upon

which it was based was intertwined with, solely deriva-

tive of and utterly dependent upon that of her husband.

And if she were to collect all or a part of her judgment

through the processes of this Court, he would stand to

benefit, even if only indirectly.

In closing it should be stated that nothing in this

judgment should be construed as condoning the acts of

Snow and Accredited and their agents which caused the

events in Canada. Now that the Kear case is on the books,

the criminal laws of Canada and the extradition treaty

between our two countries should provide a sufficient

App. 9

deterrent against that type of activity in the future. This

Court agrees with the suggestion of Judge Murnaghan in

Kear that it might be profitable to pursue through diplo-

matic and political channels a system of cooperation

between officials of our two countries for the return of all

American bail jumpers. Finally, lest it be thought other-

wise, this Court has the utmost respect for the nation of

Canada, its laws, its jurists and its legal system, and only

holds that because of the peculiar facts and circumstances

of this case, it falls within those very few exceptions

where an American state court should decline to enforce

a foreign nation’s judgment.

Accordingly, based upon all of the foregoing, it is

ORDERED and ADJUDGED that:

1. Plaintiff’s Motion for Summary Judgment is

denied.

2. Defendants’ Motion for Summary Judgment is

granted, and Final Summary Judgment is hereby entered

in favor of defendants Hardy M. Snow and Accredited

Surety and Casualty Company, Inc. Plaintiff will take

nothing by this action and go hence without day. Defen-

_dants shall recover their taxable costs, if any.

3. Both parties’ motions for attorney’s fees and

other pending motions are denied.

DONE and ORDERED in Chambers at Orlando,

Orange County, Florida, this 26 day of July, 1991.

/s/ ROM W. POWELL

CIRCUIT JUDGE

App. 10

CERTIFICATE OF SERVICE

| HEREBY CERTIFY that copies hereof have been

furnished to James L. Simon, of Holland & Knight, Post

Office Box 1526, Orlando, Florida, 32802, attorney for

plaintiff, and Sharon Lee Stedman, of Rumberger, Kirk,

Caldwell, Cabaniss, Burke & Weschler, Post Office Box

1873, Orlando, Florida, 32802, attorney for defendants, by

United States Mail this 26 day of July, 1991.

/s/ Marilee A. DeLoy

Judicial Assistant

1 Accredited paid the $137,500 to Putnam County. Upon

Mr. Jaffe’s return to custody there, $37,500 was remitted to

Accredited. Putnam County kept the remaining $100,000.

2 Unlawful Land Sales Practices and Failure to Appear are

not among the extraditable offenses listed in the treaty

between our two countries. See Art. 2, Treaty on Extradition

Between the United States of America and Canada (1971) and

Annexed Schedule, para.s [sic] 1-30. Consequently, Canada

would not have been obligated to surrender Mr. Jaffe on those

charges even if formal extradition request had been made by

the Florida Governor.

3 The record does not reflect that the circumstances of Mr.

Jaffe’s apprehension by the bail recovery agents were aggra-

vated. Using a ruse, the agents took Mr. Jaffe into their cus-

tody, placed him in mechanical restraints, transported him by

automobile across the border into the United States, allowed

him to telephone his son, then transported him by airplane to

Florida and after landing, took him by automobile to the

Putnam County Jail. See Kear.

4 In paragraphs 62 and 63 of her Complaint in the Cana-

dian action, Mrs. Jaffe alleged the following damage elements:

loss of consortium; mental and physical suffering; loss of

income; expenditures of time and effort in an “effort to redress

App. 11

the wrongful actions of the defendants” and in the administra-

tion of her husband’s affairs; expenses in visiting and obtain-

ing her husband’s release from his wrongful imprisonment.

° Curiously, the record does not reflect that a judgment

was entered in favor of Mr. Jaffe.

° Defendants’ “two dismissal” defense cannot be main-

tained for the simple reason that Mrs. Jaffe was not a co-

plaintiff with Mr. Jaffe in one of the two federal suits which

were voluntarily dismissed, and even if she had been a co-

plaintiff in both, those two suits were based upon alleged

violations of the Federal Civil Rights Act and other tort claims,

whereas the complaint herein is based upon a claim for recog-

nition of a foreign nation judgment, an entirely different claim.

App. 12

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APPENDIX 3

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

SIDNEY L. JAFFE and

RUTH M. JAFFE,

Plaintiffs, No. 85-1128-Civ-J-16

(Filed Nov. 5, 1986)

VS.

STEPHEN L. BOYLES,

et al.,

Defendants.

ORDER OF DISMISSAL WITHOUT PREJUDICE

This cause came before the Court for the hearing on

the Order to Show Cause entered on October 3, 1986, at

which the Court heard argument on defendant’s,

ACCREDITED SURETY AND CASUALTY CO., INC.

(“Accredited”), Motion for Sanctions pursuant to Rule

37(d), Fed.R.Civ.P., filed August 19, 1986, and Plaintiffs’

Motion to Dismiss Action Without Prejudice pursuant to

Rule 41(a)(2), Fed.R.Civ.P., filed August 29, 1986. After

thorough review and consideration of the pleadings filed

herein and the arguments of counsel for the parties, the

Court concludes that this action should be dismissed

without prejudice.

In its Motion for Sanctions, Accredited requests that

this cause be dismissed with prejudice for Plaintiffs’ fail-

ure to cooperate in discovery. The Court would be

inclined to grant said motion and dismiss this action with

App. 14

prejudice in light of Plaintiffs’ flouting of the authority

and jurisdiction of this Court and the Federal Rules of

Civil Procedure. See, e.g., Jaffe v. Grant, 793 F.2d 1182,

1189-90 (11th Cir. 1986). Plaintiffs unjustifiably failed to

appear at depositions noticed by Accredited and sched-

uled to take place in Jacksonville, Florida. See Rule

3.04(c), Local Rules of the United States District Court for the

Middle District of Florida. Further, Plaintiffs defied this

Court’s Order to Show Cause entered on October 3, 1986

and failed to appear at the aforementioned hearing. In

spite of Plaintiffs’ conduct, however, the Court concludes

that it was divested of jurisdiction to entertain Accred-

ited’s Motion for Sanctions when Plaintiffs filed on

August 29, 1986 their Notice of Dismissal pursuant to

Rule 41(a)(1), Fed.R.Civ.P., as to Defendants, ACCRED-

TED, HANK M. SNOW, TIMM JOHNSEN, DANIEL J.

KEAR, and JOSEPH MILLER.

As to Defendants, STEPHEN L. BOYLES, WILLIAM

HATCH, GLENN E. NORRIS, CLYDE SHOEMAKE, and

LOUIS R. STARK, the Court finds that they would suffer

no plain legal prejudice other than the mere prospect of a

second lawsuit if this cause were dismissed without prej-

udice. See McCants v. Ford Motor Company, Inc., 781 F.2d

855, 856-57 (11th Cir. 1986).

Accordingly, it is now

ORDERED and ADJUDGED:

1. That, as to Defendants, ACCREDITED, HANK M.

SNOW, TIMM JOHNSEN, DANIEL J. KEAR, and JOSEPH

MILLER, this Court’s Order to Show Cause entered on

October 3, 1986 be and the same is held for NAUGHT,

App. 15

without prejudice to Defendants’ rights under Rule 41(d),

Fed.R.Civ.P.

2. That Plaintiffs’ Motion to Dismiss Action Without

Prejudice be and the same is hereby GRANTED, and this

cause is hereby DISMISSED without prejudice as to

Defendants, STEPHEN L. BOYLES, WILLIAM HATCH,

GLENN E. NORRIS, CLYDE SHOEMAKE, and LOUIS R.

STARK.

DONE and ORDERED in Chambers at Jacksonville,

Florida this 5 day of November, 1986.

/s/ Joe H. Moore

UNITED STATES DISTRICT

JUDGE

Copies to:

/ Bruce A. Goldstein, Esquire

¥ James C. McKay, Esquire

¥ Shirley A. Walker, Esquire

/ Francis M. McDonald Jr. Esquire

“Y Mark Mahoney, Esquire

¥ Paul J. Suozzi, Esquire

/Y Ed Leinster, Esquire

¥ Joe C. Miller, Esquire

Y US. District Judge

Y Courtroom Deputy

App. 16

APPENDIX 4

Court File No. 498/66

COURT OF APPEAL FOR ONTARIO

RE: HER MAJESTY THE QUEEN (Respondent) v.

DANIEL JOHN KEAR and TIMM JOHNSEN

(Appellants)

BEFORE: BROOKE, KREVER and GALLIGAN JJ.A.

COUNSEL: FOR THE APPELLANTS

D.R. O’Connor, Q.C., Robert Russell and

Diane Oleskiw

FOR THE RESPONDENT

Brian Gover and Scott Hutchison

HEARD: September 28, 29 and October 2, 1989

ENDORSEMENT

During argument counsel for the appellants raised

three grounds of appeal from conviction.

1. It was submitted that the learned trial judge mis-

directed the jury when he said that the specific intent

prescribed by s.279(1)(b) did not require the Crown to

prove that the appellants knew that the removal of Jaffe

from Canada was unlawful according to the law of Can-

ada. We are of the opinion that the mens rea of the offence

of which the appellants were convicted does not include

subjective knowledge that their transportation of Jaffe out

of Canada was unlawful.

2. It was submitted that they had an honest belief that

they were acting lawfully, which belief was officially

induced. The court did not call upon the Crown to reply

to this ground of appeal because it was of the opinion,

|

App. 17

assuming without deciding that the defence of officially

induced error applies to indictable offences, that there

was no evidence which would give an air of reality to

that defence in this case.

3. It was submitted that the appellants had lawful

authority to apprehend Jaffe and return him to the court

in Florida from which he had absconded. They based the

claim of lawful authority upon the agreement, Exhibit 10,

and upon the common law powers of a surety to seize an

accused and deliver him to the court before whom he

must appear. Those powers under the contract and at

common law are undoubtedly broad. However, no Cana-

dian case was cited to us which suggests that those

powers extend across international boundaries. There is

jurisprudence in the United States which holds that the

authority of an American surety to seize an absconding

principal can only be exercised within the territorial

bounds of the United States itself. See Kear v. Hilton

(1983), 699 F. 2d 181 at p.182 and Reese v. United States

(1869), 76 U.S. 13. In our opinion such foreign contracts or

common law rights, even though recognized in the for-

eign country, cannot authorize the violation of Canadian

sovereignty. The policies enshrined in the Canadian Bill of

Rights, which was in force at the time of this offence, and

in the Canadian Charter of Rights and Freedoms, which has

since come into force, are conclusive of this issue. The

power of arrest which the appellants had in Florida and

perhaps in other parts of the United States were of no

effect in Canada. The appellants had no other source of

power in Canada and therefore they were without lawful

authority when they seized Jaffe and took him out of

Canada.

_

ee

App. 18

The appeals from conviction must therefore be dis-

missed.

We think the appeals from the sentences imposed by

the trial judge should succeed. The trial judge rightly

considered the offence to be a grave affront to the sover-

eignty of this country. Although it is not excused, the

gravity of the affront is mitigated by the circumstances of

the offence. In consideration of the surety putting up

$137,000 U.S. to secure his freedom from jail and after

being told by the surety that if he did not appear at court

they would come and get him anywhere, Jaffe agreed in

writing that the surety would have the right “to forthwith

apprehend, arrest and surrender” him. In violation of his

obligations to the court which had released him from jail

and to the prejudice of the surety’s $137,000, Jaffe, who

was then an American citizen, absconded and fled to this

country where he managed to obtain Canadian citizen-

ship. There is nothing favourable that can be said about

his conduct.

The trial judge found that both appellants had a

general overriding belief that the contract constituted

some authority for them to apprehend Jaffe even though

that belief was arrived at negligently. It is also clear that

the purpose of seizing Jaffe was to return him to the court

that had jurisdiction over him.

Both appellants are men of good character and

repute. The trial judge commented “in my many years on

the bench I have never seen such an outpouring of sup-

port for two individuals”.

App. 19

It is our opinion that the very conviction of those

men of one of the most serious offences known to Cana-

dian law would go a long way towards the vindication of

Canada’s sovereignty and towards the repudiation of

their affront to it.

We have received evidence that since their trial the

convictions have had a serious prejudicial effect upon the

lives of the appellants. In addition, each is faced with

impending domestic tragedy which require their physical

and moral support.

Having regard to all of the circumstances and ta king

particular account of the evidence of what has transpired

since their convictions we think the interests of justice

would be served if the sentences imposed upon the

appellants by the trial judge were reduced to time served.

Leave to appeal is granted. The sentence appeals of the

appellants are allowed accordingly. The Crown’s applica-

tion for leave to appeal sentence is granted but its appeal

is dismissed.

October 18, 1989 /s/ [llegible

/s/ lllegible

/s/ Illegible

App. 20

APPENDIX 5

* * *

60. The plaintiff Sidney Jaffe pleads that by reason of

the foregoing the defendants are liable for the said dam-

age.

61. The plaintiff Sidney Jaffe pleads that much of the

said damage was suffered in the City of Toronto, and that

he continues to suffer the said damage in the City of

Toronto.

62. The plaintiff Ruth Jaffe pleads that she has expended

considerable time and effort to redress the wrongful

actions of the defendants and in the administration of the

affairs of the plaintiff Sidney Jaffe during the period of

his wrongful imprisonment, and incurred expense in

travel to and from Florida and otherwise to visit and to

obtain the release of the plaintiff Sidney Jaffe from his

wrongful imprisonment.

63. The plainti‘f Ruth Jaffe further pleads that by reason

of the foregoing she has suffered and continues to suffer

serious damage, by reason of her mental and physical

suffering, loss of income, the aforesaid expenditures, and

the loss of guidance, care and companionship of the

plaintiff Sidney Jaffe during tie period of his imprison-

ment. The plaintiff Ruth Jaffe pleads that she has suffered

and continues to suffer this damage in the City of

Toronto.