Opposition Brief — Ducote v. Titelman

7

the motion, the trial court’s Order can be reversed for

failing to issue a “definitive ruling.”

Monroe does not state that a trial judge who denies a

motion for directed verdict in a criminal trial must explic-

itly rule that the evidence is sufficient as a matter of law

to support a conviction. Such a ruling is implicit in denial

of a motion for directed verdict..

A motion for directed verdict is properly granted when

there is insufficient evidence to authorize a rational trier

of fact to find criminal defendant guilty of the crime for

which they are charged beyond a reasonable doubt. Jordon

_v. State, 272 Ga. 395, 396, 530 S.E.2d 192, 194 (2000).

Further, the Monroe rule has also been stated as follows:

one of the essential elements of an action for ma-

licious prosecution, the lack of probable cause...

cannot be established as a matter of law if in the

preceding criminal action the court denied the

claimant’s motion for directed verdict of acquittal

and that ruling stands unreversed and untainted

by fraud or corruption.

Wingster v. Huntley’s Jiffy Stores Inc., 200 Ga. App. 252,

252, 407 S.E.2d 481, 482 (1991) (citations omitted).

Accordingly, it is clear that no decision issued by any

Georgia court has required that any Judge use specific

language in its order denying a motion for directed verdict.

The court is only required to clearly express its denial, not

the reasons underlying said denial. Jd.; Monroe, supra.

Next, Petitioner argues that the trial judge’s state-

ments when he denied the motion for directed verdict

“appear to acknowledge the reasonable doubt left by the

evidence presented by the state” since Judge Flournoy

complimented Petitioner’s ability as an advocate for Ms.

8

Titelman. (Brief for Petitioner, p. 7)’ This argument is

legally and factually without merit. Legally speaking,

[a] trial court cannot choose to deny a meritori-

ous motion for a directed verdict of acquittal

made at the close of the State’s case. “[I]t consti-

tutes reversible error for the trial court to refuse

-to direct a verdict of acquittal where there is ab-

solutely no conflict in the evidence and the ver-

dict of acquittal is demanded as a matter of law.”

Griffin v. Georgia Power Co., 186 Ga. App. 565, 566, 367

S.E.2d 832, 833-34 (1988) (citations omitted) (emphasis in

original).

Judge Flournoy, although complimentary of Petitioner,

nevertheless refused to direct a verdict to Ms. Titelman since

there was, in his opinion, a conflict in the evidence such that

a verdict for acquittal was not demanded as a matter of law.

The trial court therefore denied two motions for directed

verdict that Petitioner filed on behalf of Ms. Titelman. It is

immaterial that the trial judge was complimentary of the

skill with which a losing argument was presented so long as

the denial of the Motions were not alleged to have been

procured by fraud or corruption.

B. Petitioner Fails to Show that His Argu-

ment that Monroe Was Distinguishable

Was Based on Reason and in Good Faith.

Petitioner’s claim that his arguments to distinguish

Monroe constituted good faith attempts to extend, modify,

or reverse current case law also lack merit.

’ Actually Judge Flournoy was complimentary of the skill of both

Petitioner and the State’s attorney. (Brief for Petitioner, p. 6)

9

The District Court was an inappropri-

ate venue to argue the reversal or

modification of Monroe

In Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct.

817, 82 L. Ed. 1188 (1938), this Court held that when

federal courts exercise diversity jurisdiction, “the law to be

applied in any case is the law of the State. And whether

the law of the State shall be declared by its Legislature in

a statute or by its highest court in a decision is not a

matter of federal concern.” Erie, 304 U.S. at 78, 58 S. Ct.

at 822, 82 L. Ed. at 1194. A few years later, this Court

' again stated that

the highest court of the state is the final arbiter

of what is state law. When it has spoken, its pro-

nouncement is to be accepted by federal courts as

defining state law unless it has later given clear

and persuasive indication that its pronounce-

ment will be modified, limited or restricted.

West v. American Telephone & Telegraph Co., 311 U.S. 223,

236, 61S. Ct. 179, 183, 85 L. Ed. 139, 144 (1940).

Erie and West have been the law of the land for more

than six decades. If Petitioner wished that a court overrule

Monroe to suit his needs, it was incumbent upon him to

seek relief in Georgia’s Supreme Court, not in the federal

court system.

Monroe is a decision of Georgia’s highest court and, as

shown below, there are no signs which indicate that the

Supreme Court of Georgia is considering modifying,

changing, limiting or overruling that decision. Petitioner

inappropriately chose federal court as a forum both to

argue Ms. Titelman’s claims for custody and in his effort to

controvert the findings of probabie cause although he

10

knew that no eviderice existed to allege that Judge Flour-

noy’s Orders were procured by fraud or corruption. Fur-

thermore, there are no decisions by any Georgia state

court which question, decline to follow, or limit Monroe’s

holding that a denial of a directed verdict of acquittal at

the criminal] trial precludes a claim for malicious prosecu-

tion as a matter of law, absent evidence of fraud or corrup-

tion.

2. No exception to Monroe applies to Ms.

Titelman’s claim

Petitioner does not show that any exception to Mon-

roe’s rule is factually analogous to Ms. Titelman’s case and

does not show that any Georgia court would failed to apply

Monroe to the facts herein.

Petitioner cites to the dissent of Griffin, supra. How-

ever, a federal court exercising diversity jurisdiction

cannot follow the logic of a dissent contained in Georgia

Court of Appeals’ opinions. Rather, it is constrained to

follow the law as pronounced by the Georgia Supreme

Court, i.e., Monroe. See generally, Erie R.R., supra. Sec-

ondly, in Griffin, the plaintiff during the underlying

criminal trial had made two motions for directed verdict.

The first was denied, but the second was granted. See,

Griffin, 186 Ga. App. at 565, 367 S.E.2d at 833. The

majority decided to follow Monroe, which prompted the

dissent to question whether Monroe should be followed

when the trial court granted a subsequent motion for

directed verdict. Moreover, the dissent only questions the

application of Monroe when a subsequent motion for

directed verdict has been granted; it does not question the

validity of Monroe. See, Griffin, 186 Ga: App. at 567, 367

11

S.E.2d at 834 (stating, “I believe the majority’s decision

extends the holding in Monroe v. Sigler well beyond its

intended parameters.”). Petitioner’s citation to this case is

misleading and does not further his argument. Griffin is

clearly distinguished on its procedural facts.

Petitioner next cites to the dissent of Seven Hills

Security, Inc. v. Dillingham, 188 Ga. App. 1, 372 S.E.2d 1

(1988) as evidence that Monroe was again being attacked.

Seven Hills presents the same factual underpinning as

Griffin. The portion of the dissent which Petitioner quotes

is not questioning the validity of Monroe, but rather the

validity of Griffin, and how it may lead to a person escap-

ing civil liability. See, Seven Hills, 188 Ga. App. at 2-3, 372

S.E.2d at 2 (stating, “This court cannot avoid the applica-

tion of Monroe v. Sigler where only one motion for directed

verdict is made and denied, but we need not unnecessarily

extend it to situations where two motions for directed

verdict of acquittal are made, with the first motion being

denied and the second being granted.”) Once again, this

dissent does not question the validity of Monroe in situa-

tions such as the one at hand. Moreover, this dissent

actually reinforces the continued applicability of Monroe to

cases such as the one at hand.

Nor does Atlantic Zayre, Inc. v. Meeks, 194 Ga. App.

267, 390 S.E.2d 398 (1990) show that “Monroe is not the

impenetrable fortress” which the lower courts held it to be,

as Petitioner argues in his Brief. (Brief for Petitioner,

p. 15) Atlantic Zayre and Ms. Titelman’s claims are obvi-

ously distinguishable. The court in Atlantic Zayre was

dealing with a juvenile case, not a criminal case. The court

noted this difference, stating,

12

[mJoreover, because the juvenile proceeding is to-

tally other than and distinct from a criminal pro-

ceeding, ... there is a real question as to

whether the denial of a directed verdict for ac-

quittal in a juvenile case, as distinguished from a

criminal case, can be held to fall under the rubric

of Monroe v. Sigler.

Atlantic Zayre, 194 Ga. App. at 269, 390 S.E.2d at 400.

Further, Petitioner both misreads and misunder-

stands the scenario presented in Haile v. Pittman, 194 Ga.

App. 105, 389 S.E.2d 564 (1989). In Haile, the trial judge,

hearing the case without a jury, denied the defendant’s

motion for a judgment of acquittal. Petitioner contends

before this Court that the dissenters disagreed with

the majority’s application of Monroe because, as

{Wendy Titelman argued in the underlying case,]

the denial of the motion for directed acquittal

was not premised on a specific finding that

the state had at that time presented sufficient

evidence of guilt to convict, as the trial judge ex-

pressed some uncertainty about the case.

Brief for Petitioner, p. 15.

However, Petitioner ignores the difference between

the case at bar with the facts presented in Haile. In Haile,

the majority applied Monroe to a situation where a judge,

hearing a case without a jury, denied a criminal defen-

dant’s motion “for a judgment of acquittal.” Haile, 194 Ga.

App. at 105, 389 S.E.2d at 565. In dissent, two judges

doubted whether Monroe should apply in the matter.

Because there was no jury, “there was no proper motion

for directed verdict, as the law does not provide for such

in a bench trial because a verdict is the decision of a jury.”

Haile, 194 Ga. App. at 108, 389 S.E.2d at 567 (emphasis

13

added). Essentially, the dissenting judges question the

applicability of Monroe to bench trials, but not the validity

of Monroe. Id.

Petitioner next cites to Wolf Camera, Inc. v. Royter,

253 Ga. App. 254, 558 S.E.2d 797 (2002) for the proposi-

tion that should a civil plaintiff be able to show that the

criminal prosecution was obtained through fraud, that

Monroe is inapplicable. (Brief for Petitioner, p. 16) Wolf

Camera merely reaffirms the Monroe exception to the

finding of probable cause through a showing of fraud or

corruption. See, Monroe, 256 Ga. at 761, 353 S.E.2d at 25.

The Wolf Camera decision is an application of Monroe, not

a repudiation of it, as Petitioner would argue. Further, in

Wolf Camera, the civil plaintiff presented evidence of fraud

which directly lead to the criminal charges. Wolf Camera,

253 Ga. App. at 258, 558 S.E.2d at 801. In this case, no

evidence of fraud or corruption was even pled, much less

presented, by Petitioner, which is the primary reason that

sanctions were imposed. Rather than support Petitioner’s

contentions, Wolf Camera is yet another example of

Georgia’s faithful application of Monroe.

A similar finding is made in Kelly v. Serna, 87 F.3d

1235 (11th Cir. 2002), which Petitioner cites to for the

proposition that a convicted plaintiff may recover for

malicious prosecution upon a showing of fraud. (Brief for

Petitioner, p. 16) This is a correct statement. However, the

Kelly court cites to Monroe for that proposition. See, Kelly,

87 F.3d at 1241 (stating, “A jury conviction is conclusive of

probable cause unless there was fraud. Monroe, 353 S.E.2d

at 25”).

Petitioner concludes by citing to Blackford v. Wal-Mart

Stores, 17 F.3d 367 (11th Cir. 1994) for the proposition that

14

the law of probable cause in a malicious prosecution case is

‘unsettled.’ (Brief for Petitioner, p. 17) Petitioner’s charac-

terization of Blackford is misleading. In Blackford, the

Eleventh Circuit Court of Appeals certified the following

question to the Georgia Supreme Court: “In a suit alleging

malicious prosecution of a criminal bad check charge that

was dismissed by the court without trial, is evidence

admissible that tends to prove plaintiff’s guilt in fact of

the offense and, if so proved, is guilt a bar to the malicious

prosecution suit?” Blackford, 17 F.3d at 368. The question

was certified because Georgia law on this particular

question was unsettled, not Georgia law in general as to

probable cause. Jd. Further, the issue presented in Black-

ford is not presented by the facts sub judice.

After even a cursory reading of the seven cases cited

by Petitioner, one is left with the inevitable conclusion

that when a trial judge denies a properly heard motion for

directed verdict in a case pending in a jurisdiction other

than juvenile court, probable cause has been established

as a matter of law absent a showing of fraud or corruption.

See, Monroe, supra; Griffin, supra; Seven Hills, supra;

Atlantic Zayre, supra; Haile, supra; Wolf Camera, supra;

Kelly, supra; Blackford, supra. Petitioner knew Monroe

and its progeny would apply, but took no steps to avoid its

application. Thus, the Order granting Respondents’ Rule

11 sanctions should be affirmed.

Il, RULE 11 SANCTIONS

A. Text and Purpose of Rule 11

In pertinent part, Rule 11 of the Federal Rules of Civil

Procedure states:

15

(a) Signature. Every pleading ... shall be

signed by at least one attorney of record in the

attorney's individual name...

(b) Representation to Court. By presenting

to the court ... a pleading... an attorney or un-

represented party is certifying that to the best of

the person’s knowledge, information, and belief,

for after an inquiry reasonable under the circum-

stances, —

(1) it is not being presented for any im-

proper purpose, such as to harass or to cause un-

necessary delay or needless increase in the cost

of litigation;

(2) the claims, defenses, and other legal

contentions therein are warranted by existing

law or by a nonfrivolous argument for the exten-

sion, modification, or reversal of existing law or

the establishment of new law;

(3) the allegations and other factual con-

tentions have evidentiary support or, if specifi-

cally so identified, are likely to have evidentiary

support after a reasonable opportunity for fur-

ther investigation or discovery; and

(4) the denials of factual contentions are

warranted on the evidence or, if specifically so

identified, are reasonably based on a lack of in-

formation or belief.

(c) Sanctions. If, after notice and a reasonable

opportunity to respond, the court determines

that subdivision (b) has been violated, the court

may, subject to the conditions [set forth in the

full text of the Rule], impose an appropriate

sanction upon the attorneys, law firms, or parties

16

that have violated subdivision (b) or are respon-

sible for the violation.

Rule 11, FRCP.

A District Court may award sanctions (1) when a

party files a pleading that has no reasonable factual basis;

(2) when the party files a pleading that is based on a legal

theory that has no reasonable chance of success and that

cannot be advanced as a reasonable argument to change

existing law; or (3) when the party files a pleading in bad

faith for an improper purpose. Massengale v. Ray, 267 F.3d

1298, 1301 (11th Cir. 2001); United States v. Milam, 855

_ F.2d 739, 742 (11th Cir. 1988). In this case, the District

Court granted sanctions based upon legal and factual

insufficiency, as well as the fact that the litigation was

initiated and maintained for the purpose of harassment.

See, 17-A— 30-A, Petitioner’s Appendix.

“The standard for testing conduct under amended

Rule 11 is ‘reasonableness under the circumstances.”

Anderson v. Smithfield Foods, Inc., 353 F.3d 912, 915 (11th

Cir. 2003). In the Eleventh Circuit, a court confronted with

a motion for Rule 11 sanctions first determines whether

the party’s claims are objectively frivolous — in view of the

facts or law.— and then, if they are, whether the person

who signed the pleadings should have been aware that

they were frivolous; that is, whether he would have been

aware had he made a reasonable inquiry. Jones v. Interna-

tional Riding Helmets, Ltd., 49 F.3d 692, 695 (11th Cir.

1995). Finally, this Court reviews the District Court’s

grant of sanctions under Rule 11 using an abuse of discre-

tion standard. See, Cooter & Gell v. Hartmax Corp., 496

U.S. 384, 110 S. Ct. 2447, 110 L. Ed. 2d 359 (1990).

17

B. Legal and Factual Insufficiency :

As noted above, Monroe requires that a civil litigator

whose motion for directed verdict was denied at a preceding

criminal trial show that the denial was the product of

fraud or corruption in order to maintain a cause of action

for malicious prosecution. See, Monroe, supra. Both the

District Court and the Court of Appeals for the Eleventh

Circuit found that Petitioner had failed to allege that the

criminal trial judge’s denial of Wendy Titelman’s motions

for directed verdict were procured through fraud or cor-

ruption, even after being given specific opportunity to do

so. See generally, Appendix to Petition. Due to Petitioner’s

inability to make proper factual allegations (fraud or

corruption), his client’s legal claims also became deficient

(Monroe).

Further, as shown above, Petitioner cannot show that

Monroe should be modified or not applied under the

situation at hand. By all available evidence, no Georgia

court would fail to apply Monroe to the situation presented

by this case. Further, to the extent that Petitioner was

arguing for a modification, extension, or reversal of exist-

ing state law, such an argument is also without merit. As

described above, federal court is a totally inappropriate

venue in which to argue for this kind of change to state

law, as a federal court is bound to apply the law as pro-

nounced by Georgia’s Supreme Court. See, Erie R.R.,

supra; West, supra. Monroe is such a pronouncement.

There is no indication that, under the facts presented by

this matter, that any Georgia court would fail to apply

Monroe as both the District Court and Eleventh Circuit

did.

18

Petitioner first argues that the Eleventh Circuit failed

to address the question of whether his arguments to

distinguish Monroe were reasonable and nonfrivolous.

(Brief for Petitioner, pps. 10-12) This is patently false. The

Eleventh Circuit’s opinion affirmed the District Court’s

imposition of sanctions. The District Court found that

Petitioner’s arguments violated Rule 11, in part because it

was legally and factually insufficient. Petitioner does not

address the validity of the District Court’s action. As

shown above, Petitioner’s arguments before the District

Court regarding Monroe were clearly frivolous.

Secondly, Petitioner fails to show that the Eleventh

Circuit’s Order affirming the District Court’s award of

sanctions was in error. The Eleventh Circuit noted that

Monroe had to control the District Court’s view of Georgia

law, as it represents the pronouncement of Georgia's

highest court on a question of law specifically brought by

this case. (58-A — 59-A, Petitioner’s Appendix) The Elev-

enth Circuit relied upon Three Palms Pointe, Inc. v. State

Farm Fire & Cas. Co., 362 F.3d 1317, 1318 (11th Cir. 2004)

for the proposition that a federal court in a diversity action

must decide the case the way it appears the state’s high-

est court would. Id.; see also, Erie R.R., supra; West, supra.

As Georgia law does not recognize the exception, neither

can a federal court exercising diversity jurisdiction in

Georgia.

As shown herein, the District Court’s action was

clearly within the wide net of discretion given to it by the

Rules and this Court’s precedent. See generally, Cooter &

Gell, supra. Petitioner has not demonstrated otherwise

such that this Court should reverse the lower courts’

holdings.

C. Harassment

The District Court also found that Petitioner’s claims

were asserted for the purpose of harassment. See, 23-A —

30-A, Appendix to Petition. This finding was also affirmed

by the Eleventh Circuit. See generally, 51-A — 62-A, Ap-

pendix to Petition. The District Court did not abuse its

discretion by imposing sanctions on this theory either.

Indeed, Petitioner seeks to further harass Respondents by

using this high Court as another forum for his baseless

allegations and to relitigate custodial issues.

The District Court held that the malicious prosecution

proceedings were initiated and maintained in “an attempt

to relitigate the issues involved in the underlying divorce

and custody proceedings.” 24-A, Appendix to Petition. The

District Court took note of five pieces of evidence to sup-

port this determination: (1) Ducote’s insistence on refer-

ring to the ‘jury letter, even after the District Court stated

that it would not be taken into consideration by the court

(24-A, Appendix); (2) Ducote’s argument that the fury’

letter somehow invalidated the criminal trial judge's

denial of directed verdict (24-A — 25-A, Appendix); (3)

Ducote’s insistence on referencing baseless accusations

against Mr. Titelman in regards to sexual misconduct

toward his two daughters (25-A — 26-A, Appendix); (4)

circumstantial evidence, including an open letter written

to members of the Cobb County Bar and the Metro Atlanta

Mental Health Professionals as well as Ms. Titelman’s

subsequent forwarding of that letter to “numerous people”

with a statement attached theret» saying “[w]e will con-

tinue to fight in both state and federal court” (A-26 — A-28,

Appendix); and (5) Ducote’s attempt to “insert the limited

discovery that took place in the instant litigation into her

20

ongoing divorce and custody proceedings.” (27-A, Appen-

dix)

Petitioner has made no argument that sanctions were

impermissible on this basis. As Petitioner has not chal-

lenged the District Court’s imposition of sanctions on this

ground, Respondent Titelman deems it waived. This,

alone, is sufficient reason to deny the Petition. Even if not

waived, Petitioner has not, and cannot, show that it was

an abuse of discretion to impose sanctions upon this basis.

Ill, NO COMPELLING REASON TO GRANT CER-

TIORARI

Certiorari should not be granted in this matter as the

decisions of both the District Court and Eleventh Circuit

were, as shown above, correct. In addition, this Court

should not grant Certiorari in this case, as this matter

does not present any compelling reason to do so.

Under this Court’s Rule 10, petitions for a writ of

certiorari “will be granted only for compelling reasons.”

Supreme Court Rules, R. 10. The Rules go on to state three

situations in which a ‘compelling reason’ may be found. Jd.

A compelling reason may be found where a Court of

Appeals or other Court has issued a decision which creates

a conflict or ‘Circuit split.’ Supreme Court Rules, R. 10(a).

Petitioner has shown no such conflict, as neither the

District Court’s nor Eleventh Circuit’s Opinions have

created one.

The two remaining situations in which a compelling

reason may be found are also not present here, as no

important question of federal law has been stated by this

case, nor does this case involve an opinion of a state court

21

on a question of federal law. Supreme Court Rules, R. 10(b)

& (c).

Finally, the Rule states that this Court will “rarely”

grant certiorari “when the asserted error consists of

erroneous factual findings or the misapplication of a

properly stated rule of law.” Supreme Court Rules, R. 10.

At best, Petitioner’s position is essentially that the District

Court and/or the Court of Appeals for the Eleventh Circuit

misapplied properly stated rules of law and made errone-

ous findings of fact.

4

vw

CONCLUSION

For the reasons stated in this Brief in Opposition,

Respondent Titelman respectfully requests that this

Honorable Court DENY Ducote’s Petition for Writ of

Certiorari.

Respectfully submitted,

BETH W. KANIK, Esq.

1180 West Peachtree Street

Atlanta, GA 30309

(404) 954-5000