Opposition Brief — Steinhilber v. McFarland

— Supreme Court, U.S.

(2) ee Sey Pees

No. 99-982 JAN 10 2c00

cieRx

In The

Supreme Court of the United States

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JOHNITA F. STEINHILBER,

Petitioner,

MICHAEL S. MCFARLAND, et al.,

Respondents.

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On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

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RESPONDENTS’ BRIEF IN OPPOSITION

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THomas E. RuzicKxa*

KENNETH C. JONES

Norton, Hussarp, Ruzicka & KREAMER L.C.

130 N. Cherry

P.O. Box 550

Olathe, KS 66051-0550

(913) 782-2350

Fax (913) 782-2012

Counsel for Respondents

*Counsel of Record

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

OR CALL COLLECT (402) 342-2831

F

II.

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QUESTIONS PRESENTED

WHETHER THE CIRCUIT COURT ERRED IN FIND-

ING THAT PETITIONER WAS NOT DENIED A

RIGHT TO A JURY TRIAL IN THE DISTRICT

COURT AS THE REMEDIES SOUGHT AND

GRANTED AGAINST HER WERE EXCLUSIVELY

EQUITABLE IN NATURE?

WHETHER PETITIONER WAS DEPRIVED OF A

FULL, FAIR AND PROPER JURY TRIAL BY REASON

OF THE DISTRICT COURT’S USE OF FACTUAL

STIPULATIONS IN MAKING CERTAIN PRETRIAL

AND TRIAL RULINGS?

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LIST OF PARTIES

Johnita F. Steinhilber, Petitioner; Robert V. Steinhil-

ber, co-defendant (and Petitioner in Case No. 99-827 pres-

ently before the Court); Winnebago South, Inc., a

Missouri corporation, co-defendant; Michael S. and

Donna C. McFarland, Robert F. and Cheryl Morgan, Nor-

man R. and Phyllis A. Cates, Wayne E. and Annabell

Lasley, Richard A. and Bonnie L. LaPointe, Glen G. and

Opal Pittman, G.H. and Harriett L. Ricker, Orson A. and

Glenna M. Rau, Gary and Carolyn Sue Spears, Paul and

Juanita L. Schafer, Robert J. and Anna E. Schumacher,

Christ and Sophia Skiriotis, S.N. and Irene P. Whitcanack,

Arthur and Kathleen Zago, Respondents.

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CORPORATE DISCLOSURE

There are no parent corporations involved, and there

are no publicly held companies involved, only the pri-

vately held corporation, co-defendant Winnebago South,

Inc.

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TABLE OF CONTENTS

Page

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CONSTITUTIONAL AND STATUTORY

Per res ee a oe cs cc a 1

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I. THE DISTRICT COURT’S USE OF FACTUAL

STIPULATIONS OF THE PARTIES WAS

PROPER AND DID NOT ACT TO DENY

PETITIONER HER RIGHT TO JURY TRIAL... 3

Il. PETITIONER WAS NOT DEPRIVED OF A

FULL, FAIR AND IMPARTIAL JURY TRIAL

BY REASON OF THE DISTRICT COURT’S

Fee es GI ob os ho oro oc 7

Ill. THE DISTRICT COURT’S RULING ON THE

SUMMARY JUDGMENT MOTIONS WAS

SPEIRS 66 Sag co ene Wind SE CeCe ELE aT TRL eoSs 8

Vv

TABLE OF CONTENTS - Continued

Page

IV. PETITIONER WAS NOT DENIED A FULL,

FAIR AND IMPARTIAL JURY TRIAL BY

REASON OF THE DISTRICT COURT’S USE

OF THE FACTUAL STIPULATIONS IN

DIRECTING THE COURSE OF THE JURY

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V. SINCE ONLY EQUITABLE ISSUES REMAINED

IN THE CASE, THE DISTRICT COURT DID

NOT DEPRIVE PETITIONER OF A JURY TRIAL

VI. PETITIONER’S OWN FAILURE TO PROVIDE

AN ADEQUATE RECORD ON APPEAL,

INCLUDING A FULL TRANSCRIPT OF

MATTERS SOUGHT TO BE REVIEWED,

DOES NOT PROVIDE GROUNDS FOR

FURTHER REVIEW BY THE SUPREME

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TABLE OF AUTHORITIES

Page

Cases

Beacon Theaters, Inc. v. Westover, 359 U.S. 500, 3

L.Ed2d 968, 79 S.Ct. SOB: (1969). 5 iis ie akc 11

Brownlee v. Yellow Freight Systems, Inc., 921 F.2d

eB a | em ane eae 11

Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct.

SES CIDOB). is on wes snes nee aed ei ea ea 9

City of Mt. Pleasant v. Associated Electric

Cooperative, Inc., 838 F.2d 268 (8th Cir. 1988) ....... 9

Cooper Tire & Rubber Company v. St. Paul Fire

and Marine Insurance Company, 48 F.3d 365

(Sth Cig. FOGG a «ins ccpwswanicek sam pinkus aseuea eset 5

Cottonhill Investment Co. v. Boatmen’s National

Bank, 887 S.W.2d 242 (Mo.App. 1994) ............. 13

Dakota Industries, Inc. v. Dakota Sportswear, Inc.,

968 F.7d Gi (th Cit. Gosia 16

Gramercy Mills, Inc. v. Wolens, 63 F.3d 569 (7th

Cis, T5G3) o0ni s/s cveceden ereuueaad ee eepaceeries 16

Grand v. Cuellar, R.A., 59 F.3d 523 (5th Cir.

LORD)... «sn + os vib nates cere Ahk BRM ROLE eee ees 17

McFarland v. Winnebago South, Inc., 863 F.Supp.

1025 (WDM. T9986) «oss 5 esc ose eee cae ene 43,13

Roberts v. Browning, 610 F.2d 528 (8th Cir. 1979)...... 9

Schmid v. United Brotherhood of Carpenters and

Joiners of America, 827 F.2d 384 (8th Cir. 1987)..... 15

Slater v. KFC Corp., 621 F.2d 932 (8th Cir. 1980) .....

Syncom Capital Corporation v. Wade, 924 F.2d 167

(9th Cir. 1991)..... isu ado aa ke ae Bee e eR CE LRES 15

Vii

TABLE OF AUTHORITIES - Continued

Page

United States v. Porter, 581 F.2d 698 (8th Cir.

SR on 505,604 Tee ak ARTE RT es hae E KO 9

United States v. Vasquez, 985 F.2d 491 (10th Cir.

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STATUTES

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Supreme Court Rule 10............... 3, 4, 8, 9, 10, 17

TREATISES

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OPINIONS BELOW

The Opinions below are attached to petitioner’s Peti-

tion at Appendices 1, 2 and 3.

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JURISDICTION

The Judgment of the Court of Appeals for the Eighth

Circuit was entered on August 11, 1999. A Petition for

Rehearing was filed and the Order denying the Petition

was entered September 16, 1999. Petitioner invokes the

Court’s jurisdiction under 28 U.S.C. § 1254(1).

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CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Petitioner adequately sets forth the constitutional

and statutory provisions involved in this Petition.

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STATEMENT OF THE CASE

This cause comes before this Court after having

endured a long and twisted legal path. This case was

originally filed in December of 1971. The fundamental

claim made in this case is based upon the Interstate Land

Sales Full Disclosure Act (“ILSA”), 15 U.S.C. § 1703, et seq.

ILSA became effective April 28, 1969. Petitioner Johnita F.

Steinhilber (“JFS”) and her husband, co-defendant Robert

V. Steinhilber (“RVS”) and their company, Winnebago

South, Inc. (“WSI”), were developing a real estate subdi-

vision and in doing so, filed a Statement of Record and

Property Report (the “Property Report”) pursuant to the

requirements of ILSA. The development failed, this case

was filed and the district court appointed a Receiver of

WSI's assets.

On March 7, 1973, this case was designated to pro-

ceed as a class action under Fed.R.Civ.P. 23(b)(1) and (2).

The class was later redefined to those persons who pur-

chased lots between April 28, 1969 and October 4a, 1971.

Discovery proceeded, and after a significant delay in

the prosecution of the case, motions for partial summary

judgment filed by virtually all of the parties were briefed

and heard by the district court. The district court ruled on

the summary judgment motions, making certain deter-

minations from which RVS and JFS appealed, and the

matter thereafter eventually (and finally) went to a jury

trial. The district court presided over a twenty-eight day

jury trial (conducted between November 16, 1995 and

February 13, 1996) which resulted in an advisory verdict

against RVS on all five counts related to him and against

JFS on four out of five counts related to her. After

numerous post-trial motions, the District Court filed its

Judgment in a Civil Case on March 14, 1997, which was

entered on March 19, 1997. RSV thereafter filed a Motion

For Judgment As A Matter Of Law under Fed.R.Civ.P.

50(b), or, in the alternative, for a New Trial, under

Fed.R.Civ.P. 59. JFS only filed a Motion for Judgment as a

Matter of Law. The district court denied both motions on

June 30, 1997. On July 24, 1997 RVS and JES filed Notices

of Appeal to the Eighth Circuit Court of Appeals. The

appeals were briefed by RVS and JFS separately, but

plaintiffs filed a consolidated reply brief. The court of

appeals issued its opinion affirming the district court’s

actions on August 11, 1999. On September 16, 1999, the

appellate court entered an Order denying RVS and JFS’s

Petitions for Rehearing.

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ARGUMENT

I. THE DISTRICT COURT’S USE OF FACTUAL STIP-

ULATIONS OF THE PARTIES WAS PROPER AND

DID NOT ACT TO DENY PETITIONER HER

RIGHT TO JURY TRIAL

JFS’s Petition for a Writ of Certiorari is just the latest

chapter in this unfortunate piece of litigation which has

trudged through the courts for the past twenty-eight

years. Like almost everything else filed by JFS, the Peti-

tion has no merit. JFS characterizes the district court and

the Eighth Circuit Court of Appeals’ actions as an

“embarrassment” and a “scandal in the administration of

justice”. This hyperbole no doubt is a result of JFS’s

frustration at having finally been held accountable for her

fraudulent actions which occurred in the late 1960’s and

early 1970’s. Nothing set forth in the Petition warrants

review by this Court. The Eighth Circuit correctly recog-

nized that the district court’s actions were warranted and

further, that JFS’s efforts at attempting to appeal the same

were so deficient as to render it impossible for any court

to provide any further meaningful review.

JFS asserts three “reasons” to support her Petition,

basically parroting the language of Supreme Court Rule

10. She also presents six “questions” for the Court which

presumably relate to the reasons supporting her Petition.

Many of the questions raised by JFS deal with the district

court’s alleged denial of her right to a jury trial (despite

receiving a mostly unfavorable verdict after participating

in a twenty-eight day jury trial which was deemed “advi-

sory” in nature). As will be discussed later, JFS did not

have a right to a jury trial as the remedies sought and

granted against her were exclusively equitable in nature.

An examination of JFS’s brief to the Eighth Circuit reveals

that the true dispute she has with the district court and

now the Eighth Circuit is the district court’s use of certain

stipulated facts in making pretrial rulings, which in turn

had the effect of taking undisputed factual issues away

from the trier of fact.

The Eighth Circuit correctly ruled that “the Steinhil-

bers were not denied their right to a jury in the district

court, as the remedies sought and granted against them

were equitable in nature. See, Kerr v. Charles F. Vatterott &

Co., No. 98-1677, 1999 WL 493996, at 5 (8th Cir. July 12,

1999) [now found at 184 F.3d 938]; Tri-State Hotels, Inc. v.

FDIC, 79 F.3d 707, 715 (8th Cir. 1996).” The court then

found that it was unable to review any of the other fact-

based claims raised by RVS and JFS because the Steinhil-

bers failed to submit the necessary transcripts pursuant to

Fed.R.App.P. 10(b)(2).

Since the primary focus of JFS’s Petition and prior

appeal relates to the district court’s use of certain stipu-

lated facts, plaintiffs will address this issue first, and then

discuss the remaining questions presented as needed.

Simply put, the controversy relating to the stipulated

facts does not rise to the level of importance contem-

plated by Supreme Court Rule 10. The court of appeals

has not entered a decision in conflict with another circuit

or with this Court nor does the court’s decision call for an

exercise of this Court’s supervisory powers. As such, this

case is not a candidate for the issuance of a writ of

certiorari.

On June 30, 1981, a document labeled “Pre-trial Brief

of the Parties” was filed with the district court by counsel

for plaintiffs. (Plaintiffs’ Eighth Circuit Appendix, pp.

1-159) (hereinafter, the “Pretrial Brief”). The Pretrial Brief

states in the first paragraph that, “Plaintiffs submit the

enclosed revised statements of fact agreed between or

among the parties and the parties’ respective statements

of contested issues of fact and law”. The first section of

the Pretrial Brief is entitled “Statements of Fact Stipulated

Among Plaintiffs and Defendants Winnebago South, Inc.,

Robert V. Steinhilber, Jack O. Hart, Bonnie Hart and John-

ita Steinhilber.” The factual statements about which JFS

complains are contained in this section of the Pretrial

Brief (hereinafter, the “Factual Stipulations”). Twelve years

later, on August 12, 1993, RVS and JFS each filed a Motion

To Set Aside Stipulations. The parties all filed volumi-

nous briefs with respect to the motions to set aside the

Factual Stipulations, and the district court heard five

days of testimony on the issue during the week of March

21, 1994, and two days of testimony on July 18 and 19,

1994. The only transcript of any of these proceedings is

found in Plaintiffs’ Eighth Circuit Appendix, pp. 160-166,

which only contains the district court's ruling on the

matter. In light of the fact that the district court’s ruling

on this issue resulted from a “mini-trial” which included

seven days of testimony and ultimately was supported by

the district court’s finding of facts, the appropriate stan-

dard of review for the appellate court was whether the

district court committed “clear error”. See, Cooper Tire &

Rubber Company v. St. Paul Fire and Marine Insurance Com-

pany, 48 F.3d 365 (8th Cir. 1995). Further, the only way for

the appellate court to review this issue would be to read

the entire transcript of the testimony, which was not

provided by JFS.

The district court concluded that the Factual Stipula-

tions were indeed stipulations of fact between plaintiffs

and defendants, were admissions of fact by defendants

and were also facts determined as a result of judicial

proceedings. The district court explained its reasoning as

follows:

Furthermore, the brief labels the factual state-

ments as statements of fact stipulated among

plaintiffs and defendants Robert Steinhilber and

Johnita Steinhilber and others.

These are the types of assertions that fairly

call for a timely response by the Steinhilbers or

their counsel if the Steinhilbers do not agree that

the factual statements are indeed stipulations

agreed to by them. However, the claimed stipu-

lations were not objected to by the Steinhilbers

or their counsel until over twelve years after the

pretrial brief was filed. Because objections were

not filed in a timely manner, I can conclude one

of two things: 1) the stipulations were indeed

intended by defendants and/or their counsel to

be binding stipulations of fact; or 2) the factual

statements contained in the stipulations are

deemed admitted by defendants and are thus

binding.

(Plaintiffs’ Eighth Circuit Appendix, p. 163).

The district court further referred to the pretrial

orders entered by the court which required the filing of

statements of stipulated fact. The November 25, 1980,

Final Pretrial Order required defendants to deny all state-

ments of fact that they did not agree with. Failure to deny

resulted in the facts being uncontroverted. The district

court therefore ruled that the Factual Stipulations were

binding on the parties. Absent a transcript of the testi-

mony used by the district court in rendering its decision

on the Stipulated Facts issue, the appellate court was

simply unable to provide a review of this issue and the

district court’s ruling was properly allowed to stand.

II. PETITIONER WAS NOT DEPRIVED OF A FULL,

FAIR AND IMPARTIAL JURY TRIAL BY REASON

OF THE DISTRICT COURT’S PRETRIAL RUL-

INGS

A careful review of the above arguments raised by

JFS once again reveals that the heart of the dispute with

the district court’s actions revolves around the initial

decision on July 19, 1994, wherein the district court found

that the Factual Stipulations, for good cause shown, were

indeed factual stipulations, would be binding upon the

parties, and used during the course of the trial as all

factual stipulations should be used. The correctness of the

district court’s decision is analyzed in detail above. The

district court’s conclusion necessarily had some impact

on related pretrial rulings and the course of the jury trial

which followed. The district court encouraged the parties

to work toward factual stipulations for a reason. This

case, as in many other cases, involves numerous facts

about which the parties do not have a disagreement. A

complex case like the one at bar indeed contained

numerous facts upon which the parties, after a lengthy

process, were able to agree. The agreement resulted in

detailed factual stipulations. Once the parties agreed to

those facts, they were not open to subsequent challenge

(especially twelve years after the stipulations were filed

of record with the court). It was therefore proper for the

district court to advise the jury of the Factual Stipulations

(they were part of the evidence) and to further advise the

jury that RVS and JFS had agreed to the Factual Stipula-

tions (since the district court had found that either they

had agreed, or their counsel had agreed to the stipula-

tions).

Given the state of the record on appeal, it is clear that

the district court reached a correct decision with respect

to the Factual Stipulations and did not commit “clear

error”. It is abundantly clear that the Eighth Circuit’s

affirmation of that ruling certainly does not rise to the

level of an issue contemplated by Supreme Court Rule 10.

Ill. THE DISTRICT COURT’S RULING ON THE

SUMMARY JUDGMENT MOTIONS WAS

PROPER

JFS attacks the district court’s granting of partial

summary judgment on a number of fronts. Her primary

argument is perhaps the most confusing. JFS appears to

argue that the district court erred by granting partial

summary judgment under the auspices of Fed.R.Civ.P.

56(c), and implies that partial summary judgment is not

available under the rules. A fair reading of Rule 56(c)

reveals that it provides instruction as to the mechanism of

how to file a motion for summary judgment and how

thereon to proceed. Fed.R.Civ.P. 56(d) in turn provides

instruction on how to proceed “[i]f on motion under this

rule judgment is not rendered upon the whole case or for

all the relief asked and a trial is necessary ...” —in other

words, if the court grants partial summary judgment. The

district court in the present case granted partial summary

judgment and properly made findings of fact about

which no material question of fact remained. The district

court then properly used those findings at trial by

instructing the jury of those facts which were no longer

before them. If there is no genuine issue about any mate-

rial fact, summary judgment is proper because it avoids

needless and costly litigation and promotes judicial effi-

ciency. Roberts v. Browning, 610 F.2d 528, 531 (8th Cir.

1979); United States v. Porter, 581 F.2d 698, 703 (8th Cir.

1978). The summary judgment procedure is not a “dis-

favored procedural shortcut.” Rather, it is “an integral

part of the Federal Rules as a whole.” Celotex Corp. v.

Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2555 (1986); see also,

City of Mt. Pleasant v. Associated Electric Cooperative, Inc.,

838 F.2d 268, 273 (8th Cir. 1988). Instructing the jury on

matters properly determined via the summary judgment

process does not usurp a jury’s role, as argued by JFS.

The jury has no role since no material question of fact

remains with respect to the court's specific findings. Peti-

tioner then attempts in her Petition to get into the

detailed findings made by the district court in its sum-

mary judgment motion. Such a factually based review is

not the proper use of this Court’s resources. See, Supreme

Court Rule 10.

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IV. PETITIONER WAS NOT DENIED A FULL, FAIR

AND IMPARTIAL JURY TRIAL BY REASON OF

THE DISTRICT COURT’S USE OF THE FACTUAL

STIPULATIONS IN DIRECTING THE COURSE

OF THE JURY TRIAL

Once again JFS raises a “question” which directly

relates to the district court’s use of the Factual Stipula-

tions. Specifically, JFS challenges the district court’s deci-

sion to advise the jury of certain stipulated facts and to

prevent JFS and her co-defendants from re-litigating

those facts at trial. Once the validity of the district court’s

actions concerning the Stipulated Facts is affirmed, the

various challenges to the use of those facts in pretrial and

trial rulings by the district court is really moot. The

district court is entitled to use factual stipulations to

streamline the presentation of a case to a jury. The man-

agement of the case in this manner, and the Eighth Cir-

cuit’s approval of the same, does not raise issues which

rise to the level contemplated in Supreme Court Rule 10

which would necessitate further review or involvement

by this Court.

V. SINCE ONLY EQUITABLE ISSUES REMAINED IN

THE CASE, THE DISTRICT COURT DID NOT

DEPRIVE PETITIONER OF A JURY TRIAL

JFS’s next “question” again raises the issue of

whether the district court deprived her of a full, fair and

impartial jury trial. When more closely examined, how-

ever, this issue is comprised of two chief complaints: The

district court’s decision on the Factual Stipulations

(which was discussed in detail above — and will not be

oo ITO —

Le ee Rn Te

11

repeated here) and the district court’s decision, sitting as

a court of equity presiding over the receivership of the

assets of Winnebago South, Inc., canceling Winnebago

South’s Note and Deed of Trust given to JFS. The key

argument appears to be that the repercussions from those

two decisions had a dramatic impact on the course of

events at trial and therefore allegedly deprived JFS of a

“full, fair and impartial jury trial”.

The decision JFS actually attempted to seek relief

from is found at McFarland v. Winnebago South, Inc., 863

F.Supp. 1025 (W.D.Mo. 1994). That decision is well rea-

soned, never properly appealed, and was rightfully left

undisturbed by the Eighth Circuit.

The District Court based its decision on this issue on

evidence gathered during the week-long evidentiary

hearings held in March and July, 1994, as well as the

Factual Stipulations. McFarland, 863 F.Supp. at 1027. The

Factual Stipulations are in the record on appeal; the full

transcript of the lengthy evidentiary hearing is not. The

appellate court, no doubt after reviewing the Factual

Stipulations, came to the same conclusion reached by the

district court and found only equitable issues remained,

thereby nullifying JFS’s reliance upon this Court’s deci-

sion in Beacon Theaters, Inc. v. Westover, 359 U.S. 500, 3

L.Ed.2d 988, 79 S.Ct. 948 (1959) and the Eighth Circuit's

decision in Brownlee v. Yellow Freight Systems, Inc., 921

F.2d 745 (8th Cir. 1990). The appellate court correctly

found that “the Steinhilbers were not denied their right to

a jury trial in the district court, as the remedies sought

against them were equitable in nature”.

12

Indeed, there is nothing in the record to rebut any of

the factual findings articulated by the district court in its

ruling wherein it reached the same conclusion. Any fac-

tual distinctions raised by JFS in her brief are wholly

devoid of support in the record on appeal.

It is readily apparent that the District Court had the

legal authority to enter the orders canceling the Note and

Deed of Trust. The District Court properly concluded:

A federal district court presiding over an

equity receivership has extremely broad power

to supervise the receivership and protect

receivership assets. 7 Moore’s Federal Practice,

1 66.08[4], (citing Bein v. Robinson, 208 U.S. 423,

28 S.Ct. 379, 52 L.Ed. 556 (1908); SEC v. Hardy,

803 F.2d 1034, 1040 (9th Cir. 1986); SEC v.

Wencke, 783 F.2d 829 (9th Cir. 1986); SEC v. Uni-

versal Financial, 760 F.2d 1034 (9th Cir. 1985); and

United States v. Arizona Fuels Corp., 739 F.2d 455,

459 (9th Cir. 1984)). Specifically, the receivership

court has the power to use summary procedures

in allowing, disallowing, and subordinating

claims of creditors, so long as creditors have fair

notice and a reasonable opportunity to respond.

SEC v. Hardy, 803 F.2d 1034, 1040 (9th Cir. 1986);

United States v. Arizona Fuels Corp., 739 F.2d 455,

458 (9th Cir. 1984).

Because a receivership court sits in equity, it

also has the authority to cancel instruments and

contracts, including notes and deeds of trust, as

part of its equitable powers. See Cleary v. Cleary,

273 S.W.2d 340, 345 (Mo. 1954); Butler County,

Missouri v. Campbell, 353 Mo. 413, 182 S.W.2d

589, 592 (1944); Signature Pool v. City of Manches-

ter, 743 S.W.2d 538, 541 (Mo.Ct.App. 1987); 13

Am.Jur.2d, Cancellation of Instruments, § 5. A jury

13

trial is not available when a party seeks the

cancellation of an instrument. United States v.

Arizona Fuels Corp., 739 F.2d 455, 459 (9th Cir.

1984); Spaunhorst v. Spaunhorst, 650 S.W.2d 650,

654 (Mo.Ct.App. 1983); 13 Am.Jur.2d, Cancella-

tion of Instruments § 62.

McFarland v. Winnebago South, Inc., 863 F.Supp. at 1034.

JFS fails to offer any persuasive legal authority to rebut

the district court’s exhaustive and compelling recitation

of legal authority for its course of action.

At trial, plaintiffs were not both seeking to rescind

their land sales contracts and obtain restitutionary relief

from some defendants, and seeking to affirm the very

same contracts and obtain compensatory damages from

other defendants. As the Eighth Circuit noted in Slater v.

KFC Corp., 621 F.2d 932, 935 (8th Cir. 1980): “Missouri law

affords an alleged fraud victim an option: he may retain

whatever he has received and sue on the contract, or he

may return what he has received and sue for rescission

and restitution.” See also Cottonhill Investment Co. v. Boat-

men’s National Bank, 887 S.W.2d 242, 744 (Mo.App. 1994)

(“Where fraud is present a party may either seek to affirm

the contract and sue for damages or may disaffirm the

contract, including a deed, and sue for rescission.”); 37

C.J.S. Fraud, § 65 (“One injured by fraud may either elect

to accept the situation and recover his damages or he may

repudiate the transaction and seek to be placed in status

quo, but he cannot do both.”)

Under the Interstate Land Sales Act, a defrauded lot

purchaser may bring an action in equity - such as for

rescission and restitution — against any person or entity

that meets the criteria for culpability under the Act.

14

Plaintiffs consistently maintained throughout the pre-trial

proceedings and throughout the trial that the jury could

only be advisory as to plaintiffs’ equitable claims for

rescission and restitution. Only by obtaining an order for

rescission would plaintiffs and the Receiver begin to be

able to reassemble all of the land into a single, unencum-

bered parcel which could then be liquidated to provide at

least a portion of the restitutionary remedies to which

plaintiffs are entitled. Since plaintiffs were exclusively

seeking equitable, rather than legal, relief, JFS did not

have a right to a jury trial with respect to those claims or

remedies. The district court and the Eighth Circuit cor-

rectly reached this conclusion.

VI. PETITIONER’S OWN FAILURE TO PROVIDE AN

ADEQUATE RECORD ON APPEAL, INCLUDING

A FULL TRANSCRIPT OF MATTERS SOUGHT

TO BE REVIEWED, DOES NOT PROVIDE

GROUNDS FOR FURTHER REVIEW BY THE

SUPREME COURT

The appeal briefs submitted by JFS and RVS to the

Eighth Circuit, and the lack of record on appeal transmit-

ted to the appellate court made it virtually impossible for

plaintiffs to respond to the appeal and defacto impossible

for the appellate court to conduct any meaningful review.

For example, RVS’s brief contained a section labeled

“Background Facts”, which was adopted in toto by JFS in

lieu of setting forth her own required Statement of Facts.

Beginning at page two of his brief, and continuing there-

after for a full twenty pages, RVS provided a comprehen-

Sive narrative of what he believed the relevant

background facts to be and then, incredibly, attached an

15

affidavit wherein he swore that the facts were true. The

affidavit is preceded by the telling statement: “All of the

facts in this ‘Statement of the Case’ were offered in evidence,

with supporting documentation for practically all, but the vast

majority of RVS's testimony and other evidence was denied

admittance, and most of the remaining was ‘chopped-up’ by

interruptions and ‘picked to pieces’, so to speak, by the Court

and Plaintiffs’ Counsel with Court approval.” (emphasis: in

original). None of the “facts” set forth by RVS (and there-

after adopted by JFS) were referenced to the record on

appeal as required by Fed.R.App.P. 28. Indeed, it would

have been impossible since there is no credible record on

appeal of evidentiary matters by reason of RVS and JFS’s

refusal to provide a full transcript. It is appellants’

responsibility to provide the appellate court with a

proper record on appeal. In the absence of a transcript,

certain issues are forfeited by appellants since the appel-

late court is unable to review the evidentiary record upon

which the district court based its rulings. See,

Fed.R.App.P. 10(b)(2), “If the appellant intends to urge

on appeal that a finding or conclusion is unsupported by

the evidence or is contrary to the evidence, the appellant

shall include in the record a transcript of all evidence

relevant to such finding or conclusion.” (emphasis sup-

plied). See also, Schmid v. United Brotherhood of Carpenters

and Joiners of America, 827 F.2d 384, 386 (8th Cir. 1987)

(“On the basis of the record before the court, it is impossi-

ble to determine the accuracy and context of the judge’s

comments allegedly indicating bias, evaluate the chal-

lenged evidentiary rulings, or rule on the weight of the

evidence.”); Syncom Capital Corporation v. Wade, 924 F.2d

167 (9th Cir. 1991) (Appeal dismissed because of the

16

appellant’s failure to provide a trial transcript); United

States v. Vasquez, 985 F.2d 491 (10th Cir. 1993) (Failure to

file transcript precludes review of trial court’s evidenti-

ary ruling; challenges to admission of evidence will not

be considered on appeal in absence of record containing

those portions of transcript on which appellant relies);

and, Gramercy Mills, Inc. v. Wolens, 63 F.3d 569 (7th Cir.

1995) (Failure to comply to with federal rule requiring

transcript to be included in the record on appeal where a

party challenges that insufficient evidence supports the

verdict is ground for forfeiture of the claim and is also

grounds for sanctions). Further, an appellate court cannot

consider evidence that is not contained in the record

below. Dakota Industries, Inc. v. Dakota Sportswear, Inc., 988

F.2d 61, 63 (8th Cir. 1993). The affidavit contained in

RVS’s brief (adopted in full by JFS) is such impermissible

evidence which was properly ignored by the appellate

court.

Even if a transcript had been available to the appel-

late court, RVS already acknowledged that the “vast

majority” of the “testimony” upon which he based his

statement of facts was denied admission into evidence.

He basically attempted to tell the appellate court, for the

first time, what he allegedly tried to get before the district

court and the jury. As such, it is a highly improper post-

trial proffer of evidence to an appellate court. While the

district court’s ruling on the admissibility of evidence

may be a proper issue for appellate review, it must be

presented to the appellate court properly. See, Fed.R.Evid.

103. RVS’s statement of facts is not the proper way to

present “facts” in an appellate brief and was properly

ignored by the Eighth Circuit. While courts may apply

ee Bee os er

in eG S ee

17

less stringent standards to parties proceeding pro se!

than to parties represented by counsel, pro se parties

must still brief issues and reasonably comply with stan-

dards for appellate briefs. See, Grand v. Cuellar, R.A., 59

F.3d 523 (5th Cir. 1995) (Pro se litigants, like all other

parties, must abide by the Federal Rules of Appellate

Procedure).

Petitioner was not “deprived” of proper review by

the Eighth Circuit. Any deficiency in the appellate court’s

ability to review the district court’s actions is a direct

result of her failure to provide a sufficient record. Such

self inflicted hindrances cannot form the proper basis for

review under Supreme Court Rule 10.

7

1 It should be noted that both RVS and JFS are licensed

attorneys. Thus, they should not be treated like typical pro se

litigants. In fact, a quick search of cases in the Westlaw database

reveals that RVS is no stranger to the courthouse. See, Robinson

v. Morrison, Inc., 501 So.2d 1323 (D.Ct.App.Fla. 1987) (RVS

counsel for appellant); Trinh Trung Do v. Amoco Oil Company, 510

So.2d 1063 (D.Ct.App.Fla. 1987) (RVS counsel for appellant);

Steinhilber v. Thompson, 1991 WL 219393 (W.D. Mo. 1991) (RVS

pro se); Steinhilber v. Watson, Ess, Marshall & Enggas, 141 F.3d

1170, 1998 WL 115804 (8th Cir. 1998) (RVS pro se); Steinhilber v.

Lamoree, 825 F.Supp. 1003 (D.Ct. Fla. 1992) (RVS pro se);

Steinhilber v. Lake Winnebago Home Owner's Association, 1991 WL

220249 (W.D. Mo. 1991) (RVS pro se); McFarland v. Winnebago

South, Inc., 863 F.Supp. 1025 (W.D.Mo 1994) (RVS pro se); United

States v. Steinhilber, 484 F.2d 386 (8th Cir. 1973) (RVS criminal

defendant); In re Steinhilber, 507 U.S. 907, 113 S.Ct. 1369 (1993)

(RVS petitioner — not disclosed in report whether RVS

represented himself in this Petition for Writ of Mandamus

before the United States Supreme Court, although it falls within

the time span in which he represented himself pro se in the

instant case as well as others).

18

CONCLUSION

WHEREFORE, for the reasons stated above, respon-

dents respectfully pray this Court deny JFS’s Petition for

a Writ of Certiorari.

Respectfully submitted,

THomas E. Ruzicxa, KS No. 07553

KENNETH C. Jones KS No. 10907

MO No. 40002

Norton, Hussarp, Ruzicka &

KREAMER L.C.

130 N. Cherry

P.O. Box 550

Olathe, KS 66051-0550

(913) 782-2350

Fax (913) 782-2012

Counsel For Respondents