Opposition Brief — Tinelli v. Redl

Supreme Court, U.S. |

FILED

5 ;

(gy JUN 4.9 d¢09

No. 99-1807

| CLERK |

IN THE :

Supreme Court of the United States

JOSEPH V. TINELLI, SR.,

Petitioner,

v.

FRANK E. REDL, et ail.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

Unrrep STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF IN OPPOSITION

DesorA A. PITMAN

CONWAY, FARRELL, CURTIN

& KELLY, P.C.

Attorneys for Respondent

63 Wall Street

New York, NY 10005-3001

(212) 785-2929

160441 @ Counsel Press LLC

(800) 274-3321 + (800) 359-6859

i

QUESTIONS PRESENTED

A. Did the Court of Appeals for the Second Circuit

properly decline to certify an unresolved question of state

common law to the highest court of the state and decide the

question, relying solely on lower court precedent and

decisions from other jurisdictions, and hold that under New

York law the question whether the failure to perfect an appeal

caused damages was a question of law for the Court and not

a question of fact for the jury?

B. By declining to certify an unresolved question of state

common law to the highest court of the state did the Court

of Appeals for the Second Circuit give rise to a conflict with

the decisions of this Court and other Circuit Courts

concerning the applicable principles for determining the

propriety of certification?

il

TABLE OF CONTENTS

Page

Questions POROGNINE .ociceccuddsacsanitieacess i

Tabte OF ComteeS occkdctivs teens ee ieee il

Reasons for Denying the Writ ................. 6

A. The Court of Appeals for the Second Circuit

properly declined to certify an unresolved

question of state common law to the highest

court of the state and decided the question,

relying solely on trial court precedent and

decisions from other jurisdictions, holding

that under New York law the question

whether the failure to perfect an appeal

caused damages was a question of law for

the Court and not a question of fact for

CO RNY. 2. cccctnkasédeeeenr cusses 6

B. By declining to certify an unresolved |

question of state common law to the highest

court of the state, the Court of Appeals for

the Second Circuit acted consistently with the

precedents set out by this Court and created

no conflict with the decisions of other Circuit

Courts concerning the applicable principles

for determining the propriety of certifying

SUG QUUMOME, os 6 60indcdhu eae asees ban 10

COROMNGEOM 6 a 6006kancseasb elena, 13

ili

TABLE OF CITED AUTHORITIES

Page

Cases:

Bank of New York v. Amoco Oil Co., 35 F.3d 643

CEE 6 bias Sed paw ia kuwt dees s 7

Bellotti v. Baird, 428 U.S. 132 (1976) ........... 9

Charles Reinhart Co. v. Winiemko, 444 Mich. 579,

513 N.W.2d 773 (Mich. 1994) ............... 8,9

City of Houston v. Hill, 482 U.S. 451 (1987) ..... 8

Dan Nelson Constr. Co. v. Nodland & Dickson, 2000

N.D. 61, 608 N.W.2d 267 (N.D. 2000) ........ 9

Envtl. Control Sys., Inc. v. Andrews, 301 Ill. App.

3d 612, 703 N.E.2d 1001 (Ill. App. Ct. 1998)

SLATED CEN Cea Sed RNS Ch hea ee cases 9

Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) ... 11

Henry v. Merck & Co., 877 F.2d 1489 (10th Cir.

ans ba vce ened ek dah ew wR h So 11

In re Brooklyn Navy Yard Asbestos Litig., 971 F.2d

I I 0 aya ik 4's bed RAW 7

Katsaris v. Scelsi, 453 N.Y.S.2d 994 (Sup. Ct.

Es CONE ais haw dhe e ese dave aavess 8

iv

Cited Authorities

Klaxon C. v. Stentor Elec. Mfg. Co., Inc., 313 U.S.

er SEED 65 awk chastened

Lehman Bros. v. Schein, 416 U.S. 386 (1974) ....

Marshall v. Nacht, 172 A.D.2d 127, 569 N.Y.S.2d

DED Ge, SPE 5 6c cla cba Vache 808k

Nunez De Villavicencio v. Cerny, 662 F. Supp. 243

CRAM es SUE S etscn awa Gneeo canescens

Peckham vy. Continental Casualty Ins Co., 895 F.2d

eS oe Be ere Peer ee ore oe

Riordan vy. Nationwide Mut. Fire Ins. Co., 977 F.2d

ig Le Re rn peer remere Ter

Steeves v. Bernstein, Shur, Sawyer & Nelson, P.C.,

1998 Me. 210, 718 A.2d 186 (Me. 1998) ......

Sturgis v. Skokos, 335 Ark 41,977 S.W.2d 217 (Ark.

ROUGE dvi nada cede éts ee eas

Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114

CE Gk TI 6 ikskn cds eacliiva Wwe tiacs

West v. Am. Tel. & Tel. Co., 311 U.S. 223 (1940) ...

Page

Cited Authorities

Page

Statutes:

N.Y. Cow. Pome: 1, ae RO ccs oc ss ae 2

N.Y. Civ. Prac. L. @R: TOOMa) oo. cccneccucs 2

I, SC, Beas OP i ok lias Ca ]

Rules:

sepeias Coat Gate 15.30 i oe he 5

U.S. Ct. of App. 2nd Cir. Rule § 0.27 (1999) ..... 6

N.Y. Comp. Codes R. & Regs tit. 22 § 500.17 .... 6

l

STATEMENT OF THE CASE

Petitioner was retained by the Town of Pawling, New

York (the “Town”) as Chief Code Enforcement Officer

(“CEO”) in 1984. In December, 1988, the Town’s Board

voted to discharge Petitioner after five years of service.

Petitioner retained Respondent, a solo practitioner, in

connection with the Town’s action.

Respondent advised the Town that its discharge of

Petitioner violated the requirements of N.Y. Civ. Serv. L.

§ 75 (McKinney 1986) (“N.Y. Civ. Serv. L. §75”)!.

Thereafter, the Town served Petitioner with a Notice of

Hearing, Statement of Charges and an Amended Statement

of Charges. In March, 1989, two full days of hearings

concerning the Town’s charges against Petitioner were held

before Stein, an impartial arbitrator appointed by the Town

pursuant to N.Y. Civ. Serv. L. § 75.2 Respondent represented

Petitioner during these hearings.

In June, 1989, Stein issued his Opinion, Findings of Fact

and Recommendation finding Petitioner guilty of two charges

relating to his conduct toward women and one charge of

failing to enforce the Town Code and recommending that

1. N.Y. Civ. Serv. L. § 75(2) requires that a person against

whom removal or other disciplinary action is proposed receive

written notice thereof and be furnished with a copy of the charges

and be allowed at least eight days for answering the same in writing.

2. N.Y. Civ. Serv. L. § 75(2) provides in relevant part that

“[t]he hearing upon such charges shall be held by the officer or

body having the power to remove the person against whom such

charges are preferred, or by a deputy or other person designated by

such officer or body in writing for such purpose.”

2

Petitioner be discharged. The Town Board unanimously

adopted Stein’s recommendation and discharged Petitioner.

In July 1989, Respondent filed an Article 78 proceeding

(the “Article 78 proceeding”), essentially an appeal,’ seeking

to annul the Town’s discharge of Petitioner. The Article 78

proceeding was transferred to the Appellate Division of the

New York State Supreme Court at the Town’s request,

pursuant to N.Y. Civ. Prac. L. & R. 7804(g) (McKinney

1987) on October 18, 1989. The time to perfect the Article

78 proceeding expired in April, 1989. Respondent did not

perfect the Article 78 proceeding nor did Respondent seek

to enlarge the time in which to do so.

On April 18, 1996, petitioner commenced this action in

the United States District Court for the Southern District of

New York invoking that Court’s diversity jurisdiction to

recover damages against Petitioner,‘ inter alia, for legal

malpractice. After the conclusion of discovery, Respondent

moved for summary judgment asserting that Petitioner had

failed to state any claims upon which relief could be granted.

In support of that motion, Respondent admitted commencing

but not perfecting the Article 78 proceeding and admitted

that he did not move to enlarge the time to perfect the Article

3. An appeal pursuant to Article 78 is a special proceeding to

challenge, inter alia, “whether a determination was made in violation

of a lawful procedure, was affected by an error of law or was arbitrary

and capricious or an abuse of discretion, including abuse of

discretion as to the measure or mode of penalty or discipline

imposed.” N.Y. Civ. Prac. L. & R. 7803 (McKinney’s 1994).

4. Petitioner did appeal from that part of the District Court’s

Order that granted summary judgment in favor of co-defendant

Hankin, Hanig, Stall & Caplicki.

3

78 proceeding. Respondent argued that under the applicable

law, Petitioner would have been unsuccessful had the Article

78 proceeding been perfected. Accordingly, Respondent’s

failure to perfect the Article 78 proceeding did not cause

Petitioner to suffer any damages. For purposes of the

summary judgment motion, Respondent assumed, arguendo,

but did not concede that he had a duty to perfect the Article

78 proceeding.°

In a Report and Recommendation dated November 17,

1998, United States Magistrate Judge Douglas Eaton

recommended that summary judgment be granted to

Respondent holding that

the question of whether an appeal woul.’ have

been successful is a question of law — a question

to be decided by “review of the transcript and

record of the underlying action, the argument of

counsel and subject to the same rules of review

as should have been applied by the appellate

courts.”

(Appendix C, C-9-10). The Magistrate Judge, applying the

New York Court of Appeals criteria for review of

administrative hearings in Article 78 proceedings, found that

the record of the Stein Hearings contained “substantial

evidence” to support Stein’s detailed findings and that Stein

did not abuse his discretion in recommending Petitioner’s

discharge. (Appendix C, C-11-16). Finding that the Article

5. Petitioner misstates the facts by asserting that “[Respondent]

conceded having had a duty and breaching it.” (Petition at 5).

Respondent’s assumption, that he had a duty was duly noted by the

Magistrate Judge in his Report and Recommendation. (Appendix

C-9).

4

78 proceeding would not have been successful, the

Magistrate Judge concluded that Petitioner had not suffered

any damages as result of Respondent’s failure to perfect the

Article 78 proceeding.

On January 2, 1999, Petitioner objected to the Report

and Recommendation arguing that causation issues were

factual determinations and that the question whether the

Article 78 proceeding would have been successful should

not have been decided summarily, but rather, should have

been presented to a jury. By Order dated January 27, 1999,

The United States District Court for the Southern District of

-New York accepted the Report and Recommendation in its

entirety and granted summary judgment to Respondent ruling

that the question of an appeal’s success, when raised in a

legal malpractice action, was a question of law to be decided

by the Court. (Appendix B, B-4). Judgment was entered in

favor of Respondent on February 3, 1999. On March 2, 1999,

Petitioner filed a Notice of Appeal from the District Court’s

judgment.

During oral argument of Petitioner’s appeal, the Second

Circuit raised, sua sponte, the possibility of certifying to the

New York Court of Appeals the question of whether the

success of an appeal when forming the basis for a legal

malpractice action was one of law or one of fact. (Appendix

A, A-7). Relying on the decision of a New York trial court

and the opinions of 21 other jurisdictions who had uniformly

addressed the issue, the Second Circuit declined to certify

the question and predicted that the New York Court of

Appeals would rule that in a legal malpractice action, the

question whether damages resulted from an attorney’s failure

to perfect an appeal was a question of law to be decided by

the Court. (Appeal A, A-7-8).

5

The Second Circuit affirmed the District Court’s decision

addressing only the issue of whether Petitioner had shown

that Respondent’s “breach of duty caused any damage, i.e.,

whether, but for [Respondent’s] failure to perfect the Article

78 Appeal, [Petitioner] ultimately would have prevailed on

appeal in challenging the finding of misconduct and

incompetence and consequent termination of his

employment.” (Appendix A, A-6).

On March 17, 2000, Petitioner filed a Petition for a Writ

of Certiorari from the Order and Judgment of the United

States Court of Appeals for the Second Circuit in Tinelli v.

Redl, 199 F.3d 603 (2d Cir. 1999). The petition was docketed

on May 12, 2000. By letter dated June 7, 2000, Respondent’s

counsel requested an additional seven days in which to file

Respondent’s Brief in Opposition. By letter dated June 8,

2000, this Court granted Respondent an extension of seven

days up to and including June 19, 2000 to file Respondent’s

Brief in Opposition. Respondent’s Brief in Opposition is filed

on June 19, 2000, pursuant to Supreme Court Rule 15.3 as

extended by the Clerk of this Court.

6

REASONS FOR DENYING THE WRIT

A. The Court of Appeals for the Second Circuit properly

declined to certify an unresolved question of state

common law te the highest court of the state and

decided the question, relying solely on trial court

precedent and decisions from other jurisdictions,

holding that under New York law the question

whether the failure to perfect an appeal caused

damages was a question of law for the Court and not

a question of fact for the jury.

The rules of the Second Circuit permit certification of a

question of law to the New York Court of Appeals where

there is no controlling New York precedent on an issue. The

Second Circuit may “certify to the highest court of a state

an unsettled and significant question of state law that will

control the outcome of a case pending before [the] Court.”

U.S. Ct. of App. 2nd Cir. Rule § 0.27 (1999). The correlative

provision in the rules of the New York Court of Appeals

gives that court the discretion to accept or reject a question

so certified.

Whenever it appears to the . . . United States Court

of Appeals ... that determinative questions of

New York law are involved in a cause pending

before it for which there is no controlling

precedent of the Court of Appeals, such court may

certify the dispositive questions of law to the

[New York] Court of Appeals.

N.Y. Comp. Codes R. & Regs tit. 22 § 500.17.

7

The decision of a federal court to certify questions of

law pursuant to state established procedures of this type rests

in the sound discretion of the court. Lehman Bros. v. Schein,

416 U.S. 386, 391 (1974). Historically, the Court of Appeals

for the Second Circuit has only certified questions to the

New York Court of Appeals in the following three

circumstances: (i) where there is a split of authority on an

issue; (ii) where the statute’s plain language is subject to

more than one interpretation or does not indicate the answer;

or (iii) when presented with a complex question of New York

common law for which no New York authority can be found.

Riordan v. Nationwide Mut. Fire Ins. Co., 977 F.2d 47, 51

(2d Cir. 1992).

However, even where the law of a state may be uncertain,

a federal court may deny certification where it believes it

can “predict” how the state court would resolve the

ambiguity. Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d

114, 119 (2d Cir. 1994). In making this prediction, the federal

court may be guided by decisions of lower state courts,

In re Brooklyn Navy Yard Asbestos Litig., 971 F.2d 831, 850

(2d Cir. 1994), and relevant cases from other jurisdictions.

Bank of New York v. Amoco Oil Co., 35 F.3d 643, 650

(2d Cir. 1994).

Petitioner contended that Respondent was liable for legal

malpractice in failing to perfect the Article 78 proceeding.

To prevail on a claim for legal malpractice under New York

law, a plaintiff must demonstrate “(1) a duty, (2) a breach of

the duty, and (3) proof that actual damages were proximately

caused by breach of that duty.” Marshall v. Nacht, 172

A.D.2d 127, 569 N.Y.S.2d 113, 114 (2d Dept. 1991).

Respondent contended that had the Article 78 proceeding

been perfected, it would not have been successful.

8

Accordingly, Petitioner could not show that the failure to

perfect the Article 78 proceeding caused Petitioner any

damages. On appeal to the Court of Appeals for the Second

Circuit, Petitioner claimed that the District Court erred in

deciding the issue of causation as a matter of law, contending

that the question of whether the Article 78 proceeding would

have succeeded was a factual matter to be resolved by a jury.

(Appendix A, A-6).

In affirming the District Court, the Second Circuit

acknowledged that there was a dearth of case law addressing

this issue in New York. Jd. The Second Circuit initially relied

on existing trial court precedent as set out in Katsaris v.

Scelsi, 453 N.Y.S.2d 994, 996 (Sup. Ct. Broome Co. 1982)

(“The judge ... must determine what the appellate court

would have done. . .”) and Nunez De Villavicencio v. Cerny,

662 F. Supp. 243, 243-44 (S.D.N.Y. 1987) (following

Katsaris and determining, as a question of law, how the

appellate court would have ruled). (Appendix A, A-7-8).

Such reliance on these decisions by the Second Circuit is

consistent with this Court’s recognition that trial court

decisions are “nevertheless laws of the state although the

highest court of the state has never passed upon them.” West

v. Am. Tel. & Tel. Co., 311 U.S. 223, 237 (1940);

see also City of Houston v. Hill, 482 U.S. 451, 470 (1987)

(recognizing that trial rulings on questions of state law are

binding).

The Second Circuit then relied on decisions of other

jurisdictions citing Steeves v. Bernstein, Shur, Sawyer &

Nelson, P.C., 1998 Me. 210, 718 A.2d 186, 191 (Me. 1998)

(“numerous courts have recognized that the determination

of whether an appeal not taken would have been successful

is within the exclusive providence of the court, not the jury.”

Id.) and Charles Reinhart Co. v. Winiemko, 444 Mich. 579,

9

513 N.W.2d 773, 783-84 n.40 (Mich. 1994) (noting that at

least nineteen jurisdictions have concluded that the

determination of whether an appeal would have been

successful is a question of law and that “no reported cases

have held otherwise”) (citing cases). (Appendix A, A-8).

In holding that the District Court properly decided that the

determination of causation of damages on the facts presented

was exclusively a question of law, the Second Circuit stated

that to rule otherwise “would misconstrue the very nature of

appellate review.” (Appendix A, A-8). Notably, Petitioner

has not cited and cannot cite a single case which holds to the

contrary.°

Petitioner misstates the scope of the Second Circuit’s

decision describing the question broadly as “the complex

issue of causation.” In fact, the Second Circuit declined to

certify the question specifically noting “the narrowness of

the issue presented and the unanimity of extensive president

— both in New York and out of New York.” (Appendix A,

A-7). Even where this Court has recognized the importance

of federal abstention pending certification, this Court has

recognized that the availability of certification is not in itself

a sufficient reason to abstain from deciding an issue of state

law. Bellotti v. Baird, 428 U.S. 132, 151 (1976).

6. Three additional states have recently concluded that the

determination of whether an appeal would have been successful is a

question of law. See Sturgis v. Skokos, 335 Ark 41, 51,977 S.W.2d

217, 222 (Ark. 1998) (matter of proximate cause for failure to file

an appeal is a question of law to be decided by a judge); Envil.

Control Sys., Inc. v. Andrews, 301 Ill. App. 3d 612, 621, 703 N.E.2d

1001, 1008 (Ill. App. Ct. 1998) (the issue of proximate cause in an

appellate legal malpractice case should be decided as a matter of

law); accord Dan Nelson Constr. Co. v. Nodland & Dickson, 2000

N.D. 61, 608 N.W.2d 267 (N.D. 2000).

10

It is an inescapable conclusion that the Court of Appeals

for the Second Circuit did not abuse its discretion in declining

to certify the question of state common law presented in

Tinelli v. Redl and Petitioner has not presented any valid

reason for this Court to undertake review of the Second

Circuit's decision.

B. By declining to certify an unresolved question of state

common law to the highest court of the state, the Court

of Appeals for the Second Circuit acted consistently with

the precedents set out by this Court and created no

conflict with the decisions of other Circuit Courts

concerning the applicable principles for determining

the propriety of certifying such questions.

As set out above, the Second Circuit acted in accordance

with the principles articulated by this Court in deciding an

unresolved question of state common law which did not

present complex issues and for which there was uniform

precedent both in New York and in the decisions of sister

States. Accordingly, Petitioner has not demonstrated any

conflict concerning the Second Circuit's declination to certify

the underlying state law question to the highest state court

and the decisions of this Court and the other Circuit Courts.

Petitioner claims that the Second Circuit’s decision

creates a conflict “with regard to its approach to resolving

the issue of causation as a matter of fact or law.” (Petition

at 8). However, the resolution of the issue of causation, to

the extent presented in the context of a state tort action, is a

matter to be governed by the substantive law of the state and

is an issue about which there may well be conflicts among

the states.

11

There is no general common law. Congress has

no power to declare substantive rules of common

law applicable in a State whether they be local in

their nature or “general,” be they commercial law

or a part of the law of torts. And no clause in the

constitution purports to confer such a power upon

the federal courts.

Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). “Whatever

lack of uniformity this may produce between federal courts

in different states is attributable to our federal system, which

leaves to a state, within the limits permitted by the

Constitution, the right to pursue local remedies diverging

from those of its neighbors.” Klaxon C. v. Stentor Elec. Mfg.

Co., Inc., 313 U.S. 487, 496 (1941).

Petitioner relies on two cases as evidencing this

purported conflict. First, Petitioner cites Henry v. Merck &

Co., 877 F.2d 1489 (10th Cir. 1989) for the proposition that

causation can become a question of law when there is no

evidence from which a jury could find a causal nexus between

the careless act and the injury. (Petition at 7). In Henry, the

Tenth Circuit applied Oklahoma’s negligence law to

determine the liability of a chemical maker, who carelessly

stored acid, for injuries sustained as a result of an intervening

theft of the acid and its intentional misuse by the thief causing

injury to a third party. Recognizing that Oklahoma had not

addressed these precise factual circumstance, the Tenth

Circuit analyzed the relevant case law of Oklahoma and

concluded that “Oklahoma’s application of the supervening

cause doctrine would follow the analysis of the Nebraska

Supreme Court.” Jd. 877 F.2d at 496. The Tenth Circuit

looked to the existing law of Oklahoma and then looked to

relevant precedent in other jurisdictions as did the Second

12

Circuit in Tinelli v. Redl. Petitioner has simply failed to show

a conflict between the Second Circuit and the Tenth Circuit.

Petitioner then cites to Peckham v. Continental Casualty

Ins Co., 895 F.2d 830 (1st Cir. 1990) as supporting the

existence of this purported conflict between the Circuits.

(Petition at 7). The Peckham case simply discusses

circumstances in which causation can be determined as a

matter of law and in no way supports Petitioner’s attempt to

create a conflict between the Circuit Courts warranting

review by this Court.

Petitioner argues that there is a “failure of circuit courts

to engage in a uniform approach to addressing issues of

substantive law when no controlling state precedent exists.”

(Petition at 9-10). Unfortunately, petitioner fails to show how

the Second Circuit deviated from the principles articulated

by this Court or how the Second Circuit’s actions created a

conflict with any other Circuit Court.

Petitioner’s assertion that the Second Circuit’s decision

in Tinelli v. Redl creates a conflict with the First Circuit and

the Tenth Circuit is nothing more than an assertion

completely unsupported by the facts and cases relied upon

by Petitioner. Accordingly, Petitioner’s misleading

characterization of a purported conflict provides no basis

for this Court’s review.

13

CONCLUSION

Petitioner raises no new or important questions.

The Second Circuit determined that the issue presented in

Tinelli v. Redl was neither unprecedented or complex and

correctly decided the issue relying on lower court decisions

and the uniform decisions of all other states that had

previously considered the precise issue raised. There is

simply no issue that must be resolved by this Court.

Wherefore, for the above stated reasons, the Petition for

Writ of Certiorari should be denied.

Respectfully submitted,

DEBORA A. PITMAN

CoNnWAY, FARRELL, CURTIN

& KELLY, P.C.

Attorneys for Respondent

63 Wall Street

New York, NY 10005-3001

(212) 785-2929