12 F.3d 171 (10th Cir. 1993), 92-6326, Rishell v. Jane Phillips Episcopal Memorial Medical Center

• Docket Nº: 92-6326.
• Citation: 12 F.3d 171
• Party Name: Max Lee RISHELL, Curator of the person and estate of Kathleen Lacey, an incapacitated person, Plaintiff-Appellant, v. JANE PHILLIPS EPISCOPAL MEMORIAL MEDICAL CENTER; Jane Phillips Episcopal Hospital, Inc., doing business as Oklahoma Medical Correction Services, formerly known as Jane G. Phillips Memorial Hospital, Inc., Defendants-Appellees.
• Case Date: December 21, 1993
• Court: United States Courts of Appeals, Court of Appeals for the Tenth Circuit

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12 F.3d 171 (10th Cir. 1993)

Max Lee RISHELL, Curator of the person and estate of

Kathleen Lacey, an incapacitated person, Plaintiff-Appellant,

v.

JANE PHILLIPS EPISCOPAL MEMORIAL MEDICAL CENTER; Jane

Phillips Episcopal Hospital, Inc., doing business as

Oklahoma Medical Correction Services, formerly known as Jane

G. Phillips Memorial Hospital, Inc., Defendants-Appellees.

No. 92-6326.

United States Court of Appeals, Tenth Circuit

December 21, 1993

Larry Alan Tawwater, Lampkin, McCaffrey & Tawwater, Oklahoma City, OK (Ben T. Lampkin and Jo L. Slama, with him on the briefs), for plaintiff-appellant.

Karen L. Callahan, Barkley, Rodolf & McCarthy, Tulsa, OK (Stephen J. Rodolf and

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Ann Makela Schneider, on the briefs), for defendants-appellees.

Before LOGAN and MOORE, Circuit Judges, and BROWN ^[*], Senior District Judge.

JOHN P. MOORE, Circuit Judge.

This case was initiated by the personal representative of a person who, while hospitalized in the defendant institution, failed in an attempt to end her own life. As a consequence of injuries arising from her abortive suicide, the person, Ms. Lacey, now exists in a permanent vegetative state in an institution in Louisiana specially able to care for her. Imprisoned within her own body and deprived of mental capacity to make even the most insignificant decisions for herself, she appears trapped in an artificial time warp between Oklahoma, the state where she lived at the time of her injury, and Louisiana, her current and apparently permanent residence. Her appeal presents the question of whether the district court correctly determined because Ms. Lacey was incapable of forming an intent she is unable to change her domicile from Oklahoma to Louisiana, thus nullifying diversity jurisdiction in this case. ¹ We think not, and reverse.

The operative facts are rather simple. After a period of treatment following her injury, Ms. Lacey was moved to a special facility in Louisiana which provides long-term care for persons with brain injuries. Both parties agree Ms. Lacey's injury has left her mentally incapacitated, unable to make decisions of any kind, and her condition is presently regarded as irreversible. Prior to the filing of this action, an interdiction proceeding was filed in Ms. Lacey's behalf in Louisiana, and plaintiff, her brother-in-law, was appointed curator of Ms. Lacey's person and her estate. ²

Plaintiff brought this action seeking damages for defendant's alleged negligence. Defendant moved to dismiss on the ground Ms. Lacey remains a domiciliary of Oklahoma; therefore, the parties are not diverse. Plaintiff asserted Ms. Lacey is a domiciliary of Louisiana because she is under the jurisdiction of the Louisiana court and because plaintiff, as curator, and Ms. Lacey's husband, as undercurator, intended Louisiana to be her permanent home. After consideration of the arguments, the district court agreed with defendant, holding Ms. Lacey could not have changed her domicile because of her inability to form intent.

Following entry of the order of dismissal, plaintiff turned to the court in Louisiana having jurisdiction over Ms. Lacey's interdiction. Apparently at plaintiff's request, that court entered an order stating, in part, Ms. Lacey was a domiciliary of Louisiana and had been for some time prior to the institution of the federal action.

Plaintiff then moved the district court for reconsideration, attaching a copy of the Louisiana court order, and asked the district court to recognize the recitations in that document. Believing the plaintiff was attempting to "scurry about, obtaining orders from state courts in an attempt to establish federal jurisdiction," the court refused to give cognizance to the Louisiana order. This appeal followed.

The conundrum presented to us is whether a personal representative appointed under court jurisdiction to act as the decision maker for a person who has lost forever the ability to make even the most insignificant decisions for herself must be barred from determining the location of the ward's domicile. Put another way, the question becomes whether the incompetent person is capable of achieving a change of domicile through the aegis of her personal representative.

The problem thus posited, we must immediately recognize diversity, as it affects jurisdiction, is a matter of federal and not state law. Kantor v. Wellesley Galleries,

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Ltd., 704 F.2d 1088, 1090 (9th Cir.1983); Stifel v. Hopkins, 477 F.2d 1116, 1120 (6th Cir.1973); Ziady v. Curley, 396 F.2d 873, 874 (4th Cir.1968); Wilson By and Through Wilson v. Kimble, 573 F.Supp. 501, 503 (D.Colo.1983). Thus, the ultimate determination in this case must be made under the guidance of federal principles. Even though federal principles will dictate the outcome, however, we can utilize state law as an aid to reaching the proper decision. Rodriguez-Diaz v. Sierra-Martinez, 853 F.2d 1027, 1030 (1st Cir.1988); Stifel, 477 F.2d at 1120. That decision is a mixed question of law and fact reviewed under a clearly erroneous standard. Crowley v. Glaze, 710 F.2d 676, 678 (10th Cir.1983).

The linchpin for the district court's judgment is Coppedge v. Clinton, 72 F.2d 531, 533 (10th Cir.1934), a case in which we unequivocally held an incompetent person presumptively lacks the capacity to change domicile. Indeed, that is a principle so well grounded in federal common law that it may be regarded as an aphorism. Nonetheless, the rule is not immutable.

Looking behind the principle, one perceives two points. First, the presumption of inability to form an intent is rebuttable. Id. Second, the principle rests upon the notion the incompetent person's right to declare domicile must be suspended until reason returns to avoid legal consequences...