Gay v. Heller, 16523.

• Decision Date: 11 February 1958
• Docket Number: No. 16523.,16523.
• Parties: Inez Stengel GAY, Appellant, v. Daniel Neal HELLER, George C. McCaughan and George E. Holt (Katherine S. McCaughan, as Executrix of the Estate of George C. McCaughan, Deceased, substituted in place of George C. McCaughan), Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

252 F.2d 313 (1958)

Inez Stengel GAY, Appellant, v. Daniel Neal HELLER, George C. McCaughan and George E. Holt (Katherine S. McCaughan, as Executrix of the Estate of George C. McCaughan, Deceased, substituted in place of George C. McCaughan), Appellees.

No. 16523.

United States Court of Appeals Fifth Circuit.

February 11, 1958.

Daniel L. Ginsberg, Miami, Fla., for appellant.

L. J. Cushman, John H. Gunn, Daniel Neal Heller, Miami, Fla., for appellees.

Before RIVES, TUTTLE and BROWN, Circuit Judges.

TUTTLE, Circuit Judge.

This is an appeal from a judgment of the trial court dismissing this suit against a Florida state circuit court judge, a court appointed curator and the attorney of record for plaintiff in the state court proceedings which terminated unsatisfactorily for plaintiff. The jurisdiction of the trial court was based on diversity of citizenship, and in addition the complaint sought to make out a case arising under the federal civil rights statutes.

In essence the complaint charged that defendant McCaughan (who has died, but is here represented by his personal representative, Katherine S. McCaughan, his executrix) was an attorney at law of Miami, Florida; that she employed him and paid him a fee of $500 to cause her and an uncle to be appointed by the county court as guardians for appellant's grandmother, a temporary sojourner in Florida whose legal residence was the state of New Jersey; that upon McCaughan's advice she signed instead a petition for appointment of a curator by the circuit court; that she relied on his advice that she could legally file such a petition, but that because she was not of the class specified in the statute she actually had no standing to file such petition; that nevertheless the circuit judge, another defendant, George Holt, knowing its invalidity, appointed co-defendant Heller as curator and appointed McCaughan attorney for the curator; that the defendants thereafter, conspiring together to liquidate the estate of the grandmother, caused the estate in Florida, valued by her at $60,000, to be sold for $5,300, which was divided, by court order made by conspiracy among the three defendants, between McCaughan and Heller in whose favor the court also gave personal judgments against appellant, without notice to her or opportunity to be heard, of an additional $10,000 for fees; that the circuit judge, pursuant to the plan, agreed to and participated in by her attorney McCaughan, entered void orders, which, among other things, adjudged appellant's ward to be domiciled in Florida in order to get control over income of a New Jersey trust in favor of the grandmother, adjudging the income to be subject to the curator's demand; and finally adjudging appellant in contempt and committing her to jail for 60 days, without personal notice and without a hearing; that she avoided incarceration only by removing herself and her grandmother from the state of Florida (before any contempt proceedings had been brought); that during all of these matters McCaughan was still her attorney of record and obligated to attend to her interests and those of her grandmother; that he informed her when she sought to discharge him that she could not legally do so unless she paid him additional fees and until the court had allowed his fees as attorney for the curator; that she was thus unable to get any proper legal advice or representation while he was conspiring with the others to her detriment. The grandmother has since died; the judgment of committal for contempt of court and the judgments in favor of McCaughan and Heller for some $10,000 are still unsatisfied as against her. None of the orders of the circuit court of which appellant complains have been appealed and none have been attacked collaterally before the filing of this suit. The suit here before the court seeks an injunction against the enforcement of the judgment, asks that they be held to be null and void and for compensatory damages, including the amount of the judgments against her, and punitive damages.

The trial court dismissed the complaint as amended as against Holt, the circuit judge, and Heller, the curator, for a failure to allege a claim on which relief could be granted; initially it dismissed the complaint against McCaughan, but granted leave to amend; upon the filing of an amendment seeking to allege the facts against McCaughan that included those set out above, the court finally dismissed the complaint as to him also. This appeal complains of the orders of dismissal as to all of the parties.

This being a suit between a New York plaintiff and Florida defendants the jurisdiction of the federal courts attaches by reason of the diversity of citizenship.

To the extent that the plaintiff seeks to assert a constitutional right under the XIV Amendment, or a right of action under the Federal civil rights statutes,¹ the complaint as against Holt and Heller does not, we think, assert any different cause of action than would be available to appellant as a non-resident of Florida suing on the basis of diversity of citizenship. State judges and state courts are, of course, repositories of state power, and state court action may in some cases amount to a deprivation by a state of rights guaranteed by the XIV Amendment, e. g., state court enforcement of racial covenants in real estate contracts, Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161. This is not to say, however, that for the acts done by a state court that are alleged to have violated the plaintiff's constitutional rights the remedy is a suit for damages under the civil rights statutes. The normal way to correct errors in the trial or other disposition of a law suit is by appeal, not by suing the judge. The Supreme Court held in Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L. Ed. 1019, that the civil rights acts could not be interpreted so as to give a right of action for damages by an aggrieved plaintiff against a committee of a state legislature. As subsequently stated by the Court of Appeals for the First Circuit in a suit for damages against a state court judge in ...