Jones v. Cain

SCHWELB, Associate Judge,

dissenting:

I regret that I cannot agree with the court’s disposition of this appeal. First, as explained in Cain’s brief, the bankruptcy proceeding initiated by Jones was dismissed on March 11,1997, and is no longer pending. Accordingly, the automatic stay entered by the trial court pursuant to the bankruptcy statute no longer serves any purpose, and it should be vacated as moot, so that Cain can be permitted to enforce forthwith his Superior Court judgment. It seems to me pointless to refer Cain to the Bankruptcy Court, in a case which no longer exists there, when all that needs to be done is for this court to vacate a stay entered by the Superior Court, over which we have appellate jurisdiction. To put the matter another way, the sole remaining legal obstacle to the enforcement by Cain of his Superior Court judgment is a stay entered by the Superior Court, not by the Bankruptcy Court, and the necessary steps should therefore be taken by a District of Columbia court, and not by a federal bankruptcy court.

Second, even if I were to assume that the stay entered by the trial court ren*332dered Cain’s judgment retroactively void, I would decline, on equitable grounds, to permit Jones to claim the protections of the automatic stay provision. I consider the case indistinguishable in principle from In re Calder, 907 F.2d 953 (10th Cir.1990), and, in particular, from the passage from Calder quoted at page 11 of the majority opinion.

The key fact here is that Jones litigated the merits of his dispute with Cain in the Superior Court without disclosing, either to the court or to Cain, that an automatic stay was in effect. It was only after Jones had lost his case on the merits that he undertook to avoid paying the sum that the jury had awarded to Cain by belatedly revealing the existence of the stay. As in Calder, 907 F.2d at 956-57, Jones asks us “to permit the automatic stay provision to be used as a trump card played after an unfavorable result was reached in [the Superior Court].” The court in Calder would not countenance such an inequitable result, and neither should we.

To be sure, there is no explicit finding of bad faith on Jones’ part; there could not be, for there has not been an adversarial examination of Jones on the subject. Indeed, the sequence of events orchestrated by Jones has prevented any judicial assessment of his good faith or lack thereof. But the trial court found, and I agree, that “[b]ecause defendant never raised the stay until after he lost at trial, he misused the resources of this Court and effectively misled plaintiff and the Court by continuing to litigate the case after the filing of his bankruptcy petition.” Moreover, even though appellate courts do not function as finders of fact, we as judges are not supposed to check in our common sense at the courthouse door. I cannot believe that Jones would have brought the stay to the court’s attention if he had prevailed on the merits in the Superior Court, the trial judge evidently did not believe it either, and I do not suppose that my colleagues in the majority believe it. Indeed, if we were to credit the existence of such an improbable scenario, we would surely be what Justice Holmes called “naif, simple-minded” judges who “need something of Mephistopheles,” as well as “education in the obvious.” Oliver Wendell Holmes, Law and the Court, in Collected Legal Papers 291, 295 (1920). Indeed, unless judges are expected to “shut their minds to that which all others can see or understand,” Poulnot v. District of Columbia, 608 A.2d 134, 141 (D.C.1992) (citing Child Labor Tax Case, 259 U.S. 20, 37, 42 S.Ct. 449, 66 L.Ed. 817 (1922)), we ought not to suppose that Jones’ belated invocation of the stay was unrelated to his loss on the merits in the Superior Court. The trial judge did not suppose that, opining instead that Jones “effectively misled the plaintiff and the court,” and the law is not so remote from reality that judges are precluded from treating the obvious as obvious.

But even if we were to assume that losing the Superior Court case had nothing to do with the lateness of Jones’ disclosure — an assumption which, on the record here, seems dubious to say the least — that ought not to be controlling. The effect of what Jones did was to prevent the enforcement of the judgment against him by disclosing the existence of the stay only after Jones had lost the Superior Court case. His nondisclosure while that case was proceeding caused the court, Cain, the jurors, and all other participants in the trial to expend much time and energy which need not and would not have been expended if timely disclosure had been made. Jones should be “held to have intended the natural result which flowed from [his] conduct.” Rabinowitz v. United States, 366 F.2d 34, 56 (5th Cir.1966) (citations omitted). Moreover, given the consequences of Jones’ actions, it would be of no consola*333tion to Cain even if those actions were taken in good faith. Cf. Burton v. Wilmington Parking Auth., 365 U.S. 715, 725, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961).

The majority attempts to distinguish Calder upon the ground that the debtor in Calder was himself a bankruptcy attorney, while Jones was proceeding pro se at the time he secured the automatic stay. I must acknowledge that the manipulation of the automatic stay procedure by a bankruptcy lawyer makes Calder a more colorful case than this one, but I do not believe that the asserted distinction should be dis-positive. There is no evidence that Jones — who is known as Dr. Jones and who does business as KJA Associates— was indigent and could not afford counsel; indeed, he was represented by counsel on appeal. “[Ajlthough a plaintiff has a right to proceed pro se, such a litigant can expect no special treatment from the court,” Abell v. Wang, 697 A.2d 796, 804 (D.C. 1997), and I “do not believe that [Jones’] status as a pro se litigant warrants a different result [from that in Calder ].” West v. Morris, 711 A.2d 1269, 1272 n. 5 (D.C. 1998).

As Justice Black, writing for the Court, explained in Glus v. Brooklyn E. Dist. Terminal, 359 U.S. 231, 232-33, 79 S.Ct. 760, 3 L.Ed.2d 770 (1959),

no man may take advantage of his own wrong. Deeply rooted in our jurisprudence this principle has been applied in many diverse classes of cases by both law and equity courts....

Accord, Ray v. Queen, 747 A.2d 1137, 1142 (D.C.2000). Whatever Jones’ subjective state of mind may have been, his delay in disclosing the automatic stay was, as the trial judge indicated, costly both to Cain and to the taxpayers, but it has operated to Jones’ own advantage and has, so far, protected him from paying a judgment with which the court finds no substantive fault. I would not permit Jones to profit in this way from his self-serving and wrongful nondisclosure.

In his brief, Cain argues as follows:

In the instant case, Appellant remained totally silent about the existence of a bankruptcy case throughout the two years leading up to the trial in the court below, and throughout the trial as well. In these peculiar circumstances, the post-judgment revelation of a pre-exist-ing bankruptcy action can readily be seen for what it is; a transparent ... attempt to overturn a fairly won verdict. ... As even Appellant admits, this Court can properly consider equitable factors in its determination as to the effect of the bankruptcy stay, and if ever there was an instance where equity should override formalism it is this one. [Citations omitted.]
Furthermore, public policy would seem to demand that the judgment of the jury be upheld. If Appellant is permitted to nullify an entire trial and void a jury judgment simply by means of pulling the “bankruptcy case” rabbit out of his hat, then no trial for damages is safe.... If defendant prevails, the bankruptcy need not be mentioned; but if he loses, presto!, the judgment is voided. Appellee can think of no surer recipe for anarchy in the courts than the judicial sanctioning of such a ... trial tactic.

(Italics in original; some argumentative adjectives omitted.) I agree, and therefore respectfully dissent. I would follow Calder, vacate the trial court’s stay,1 and *334permit Cain to enforce his judgment forthwith.

. It should be noted that the trial judge issued her stay in December 1995, and the bankruptcy proceeding was not dismissed until March 11, 1997.