Jaffe v. Accredited Surety and Casualty Co., Inc.

• Decision Date: 25 June 2002
• Docket Number: No. 01-1628.,01-1628.
• Citation: 294 F.3d 584
• Parties: Sidney L. JAFFE; Ruth Jaffe, Plaintiffs-Appellants, v. ACCREDITED SURETY AND CASUALTY COMPANY, INCORPORATED, Defendant-Appellee. Center for Constitutional Rights, Amicus Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

294 F.3d 584

Sidney L. JAFFE; Ruth Jaffe, Plaintiffs-Appellants, v. ACCREDITED SURETY AND CASUALTY COMPANY, INCORPORATED, Defendant-Appellee Center for Constitutional Rights, Amicus Curiae.

No. 01-1628.

United States Court of Appeals, Fourth Circuit.

Argued February 26, 2002.

Decided June 25, 2002.

COPYRIGHT MATERIAL OMITTED

ARGUED:

Harold M. Jaffe, Oakland, California, for Appellants. Michael Lee Sturm, Wiley, Rein & Fielding, L.L.P., Washington, D.C., for Appellee.

ON

BRIEF:

David Barger, Kilpatrick Stockton, Reston, Virginia, for Appellants. Fred F. Fielding, Leslie D. Fetter, Wiley, Rein & Fielding, L.L.P., Washington, D.C., for Appellee. Jennifer Green, Center for Constitutional Rights, New York, New York; William J. Aceves, California Western School of Law, San Diego, California, for Amicus Curiae.

Before MOTZ, KING, and GREGORY, Circuit Judges.

Affirmed in part and certified in part by published opinion. Judge DIANA GRIBBON MOTZ wrote the opinion, in which Judge KING and Judge GREGORY joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge.

In this diversity action, Sidney Jaffe and his wife, Ruth Jaffe, Canadian citizens now living in Mexico, seek recognition of two default judgments — one in favor of Sidney Jaffe and one in favor of Ruth Jaffe. A Canadian court entered the default judgments against Accredited Surety & Casualty Co., Inc. (Accredited), a Florida corporation doing business in Virginia. The Canadian default judgments arise from the Jaffes' contention that, after Sidney Jaffe jumped bail on Florida criminal charges, bail bondsmen employed by Accredited "kidnapped" him in Canada and illegally transported him to Florida for trial.

The district court refused to recognize the Canadian default judgments and granted summary judgment to Accredited. Because we must give full faith and credit to a Florida court's previous judgment refusing to recognize Ruth Jaffe's Canadian default judgment, we affirm the district court's grant of summary judgment to Accredited with respect to Ruth Jaffe's default judgment. However, because Virginia law is unclear as to whether the claim for relief on which Sidney Jaffe's default judgment is based "is repugnant to the public policy" of Virginia, or otherwise "need not be recognized" under Virginia's Foreign Country Money-Judgments Recognition Act, Va.Code Ann. § 8.01-465.6 et seq. (Michie 2000), we respectfully certify that question to the Supreme Court of Virginia.

I.

On August 7, 1980, Sidney Jaffe was arrested in Florida and charged with 28 counts of violating the Florida Uniform Land Sales Practices Law, as codified at Fla. Stat. ch. 498.001 et seq. (1979). See Jaffe v. State, 438 So.2d 72, 74 (Fla.Dist.Ct.App.1983). These charges stemmed from Jaffe's involvement in allegedly fraudulent real estate transactions in which he delivered quit-claim (rather than warranty) deeds to 28 purchasers of subdivision lots located in Putnam County, Florida. At the time Jaffe was charged with violating the Land Sales Practices Law, a civil lawsuit filed by the purchasers of the properties had been pending in Florida state court for more than two years.

Jaffe was released on $137,500 bond, which Accredited posted on Jaffe's behalf. Jaffe signed a bond agreement with Accredited providing that Accredited had the right to "apprehend, arrest and surrender" Jaffe in the event Jaffe left the Florida jurisdiction "without the written consent of the court and [Accredited]" or if Jaffe moved from his then-current residence without notifying Accredited.

Once free on bail, Jaffe fled with family members to Toronto, Canada, without notifying or obtaining the permission of the court or Accredited. Jaffe subsequently failed to appear for trial in Florida, scheduled for May 18, 1981. At that time, Jaffe's counsel presented evidence to the Florida court that Jaffe's failure to appear was attributable to a basketball injury Jaffe had suffered in Canada. The Florida court added a failure to appear charge to the original charges against Jaffe and issued a warrant for Jaffe's arrest. The Florida court also estreated, or took away, Jaffe's bond based on his failure to appear. Accredited sought to have the estreature set aside, reiterating the representation by Jaffe's counsel that Jaffe's failure to appear was due to a basketball injury. On September 18, 1981, the court agreed to set aside the estreature on the condition that Accredited produce Jaffe within ninety days.

Later that month, two Accredited bondsmen, posing as police officers, located and apprehended Jaffe at his condominium building in Toronto, Canada, as he returned from jogging. The bondsmen then took Jaffe by car across the international border to Niagara Falls, New York, and returned with him by airplane to Florida. Jaffe stood trial and, on October 23, 1981, was convicted on all 28 Land Sales Practices counts and one count of failing to appear. See Jaffe v. State, 438 So.2d at 74.

A number of legal developments occurred over the course of the next two years, during which Jaffe served sentences on the above convictions. First, in April 1982, in the civil action related to the quitclaim deeds the Florida state court entered judgment against Jaffe's corporations in the amount of $3 million, which was affirmed on appeal. Then, in July 1983, Jaffe was charged with eight counts of criminal "organized fraud," again related to the allegedly fraudulent land deals. See Jaffe v. Sanders, 463 So.2d 318 (Fla.Dist.Ct.App. 1984) (holding that the prior convictions did not bar — by collateral estoppel or double jeopardy — prosecution of criminal fraud charges against Jaffe). Two months later, in September 1983, a state appellate court set aside Jaffe's convictions on the Land Sales Act convictions due to "defective" wording in the indictment; however, the court upheld his failure to appear conviction. See Jaffe v. State, 438 So.2d at 75. That same month, Jaffe became eligible for parole on the failure to appear conviction and also filed a letter of credit in lieu of bond in the amount of $150,000 with respect to the criminal fraud charges. When released the next month on parole, Jaffe immediately fled to Canada.

Florida authorities filed more criminal charges against Jaffe in March 1984, while Jaffe continued to reside in Canada. This time, Jaffe was charged with four counts of perjury stemming from answers to interrogatories in both the state civil action and in a subsequent federal civil action brought by Jaffe relating to the allegedly fraudulent land deals.¹

In the meantime, Canadian officials "took a very jaundiced view" of the bondsmen's arrest of Jaffe, who had since become a Canadian citizen, in Canada, without notice or surrender to Canadian officials. See Kear v. Hilton, 699 F.2d 181, 182-83 & n. 1 (4th Cir.1983) (denying habeas relief to Accredited bondsman seeking to prevent his extradition to Canada for kidnapping Jaffe). Contrary to the law in each of the United States, in Canada a surety must either obtain an order from a Canadian court permitting the arrest of the accused or must surrender the accused to Canadian peace officers. Id. at 182 & n. 3 (citing Criminal Code, R.S.C. ch. C-34, §§ 449, 700(1), 702 (1970) (Can.)). At the request of Canadian authorities, the two Accredited bondsmen were extradited to Canada and were charged and convicted there of criminal kidnapping.

On September 20, 1985, after a Canadian court had convicted the bondsmen, the Jaffes filed a civil suit in the Ontario Court of Justice against Accredited and its president, Hank M. Snow.² The Jaffes alleged that the bondsmen kidnapped Sidney Jaffe in violation of Canadian law, "struck [Jaffe] on the head, threatened him with further physical harm, handcuffed him, and threatened to kill members of his family in order to prevent his escaping." In the same action, the Jaffes also sued a host of other persons whom they alleged caused or conspired in the "wrongful abduction" or "wrongful imprisonment," including various Florida state attorneys, local government and county officials in Putnam County, and the attorneys who litigated the civil suit against Jaffe's corporations.

Accredited and Snow entered special appearances and filed a motion to dismiss for lack of personal jurisdiction and forum non conveniens; the Canadian court dismissed that motion. See Jaffe v. Miller, [1989] 76 O.A.C. 15. Accredited and Snow elected not to defend further against the action. On November 22, 1990, the Canadian court entered two default judgments against Accredited — one in favor of Sidney Jaffe for $617,434.17 in Canadian dollars, plus $290,140.94 in U.S. dollars, plus interest, and a second and separate default judgment in favor of Ruth Jaffe for $115,293.56 in Canadian dollars, plus $903,481.47 in U.S. dollars, plus interest.³

On January 15, 1991, Ruth Jaffe filed an action in Florida state court seeking recognition of her Canadian default judgment. The Florida court refused recognition, reasoning that to do so would contravene Florida public policy because Florida law "favors and sanctions the apprehension of a bond jumper" by a surety, like Accredited, and because Jaffe's criminal act in failing to appear constituted the direct cause of the bondsmen's actions. Jaffe v. Snow, No. CI 91-1593, at 8-9 (Fla.Cir.Ct. July 26, 1991) (order granting summary judgment). The court concluded that Ruth Jaffe was not entitled to recognition of her Canadian default judgment because "the claim upon which it was based was intertwined with, solely derivative of and utterly dependent upon that of her husband." Id. For these reasons, the Florida trial court granted summary judgment to Accredited; the Florida appellate court affirmed. Jaffe v. Snow, 610 So.2d 482 (Fla.Dist.Ct.App.1992).

In 1994, a Canadian court, after a full trial, issued a comprehensive, 93-page decision resolving the Jaffes' claims as to the remaining defendants in the Jaffes' Canadian action. The same court...