Zorn v. Smith

• Decision Date: 04 February 2011
• Docket Number: No. 09–035.,09–035.
• Citation: 19 A.3d 112,2011 VT 10
• Parties: Robert E. ZORNv.S. Scott SMITH.
• Court: Vermont Supreme Court

19 A.3d 112

2011 VT 10

Robert E. ZORN

v.S. Scott SMITH.

No. 09–035.

Supreme Court of Vermont.

Feb. 4, 2011.

Robert E. Zorn, Pro Se, Middletown Springs, Plaintiff–Appellant.S. Scott Smith, Pro Se, Rutland, Defendant–Appellee.Present: DOOLEY, JOHNSON and BURGESS, JJ., and CRAWFORD, Supr. J. and COOK, D.J. (Ret.), Specially Assigned.BURGESS, J.

¶ 1. Plaintiff Robert E. Zorn appeals pro se from an order prohibiting him from filing any additional documents with the Rutland Superior Court clerk except through a licensed attorney. We affirm the trial court's order except in two respects. First, the order is clarified to limit its pleading restriction to this particular case and, second, the order is modified to permit Zorn to demonstrate financial inability, if any, to comply with the order.

¶ 2. This case began in September 2000, when Zorn, then represented by counsel, sued defendant Smith for legal malpractice. It was alleged that he paid Smith a retainer and Smith agreed to file a complaint on Zorn's behalf in a defective-automobile case. Smith told Zorn that the complaint had been filed when in fact it had not, and due to Smith's inaction, the statute of limitations ran on the claim. Zorn moved for summary judgment on his malpractice claim, which Smith did not oppose. The court thus granted summary judgment to Zorn and in an August 2001 order it awarded him $26,108.00, plus interest.

¶ 3. In January 2002, Zorn entered a pro se notice of appearance and filed a motion for trustee process, seeking to collect the judgment from Smith. See V.R.C.P. 4.2. Smith did not appear at a hearing scheduled on the motion, but agreed in late January to respond to post-judgment interrogatories. The court scheduled an April 2002 hearing on Zorn's motion for financial disclosure. Smith again failed to appear, and a warrant issued for his arrest. Served with the warrant, Smith personally appeared before the court to state that he had not received notice of the hearing and had not received any interrogatories from Zorn. The court vacated the warrant. At a subsequent hearing on April 23, 2002, the parties agreed that Smith would submit a payment plan or respond to the financial discovery requests within thirty days. There is no evidence that Smith honored this agreement.

¶ 4. No action appears in the case over the next four years until October 2006, when Zorn requested and ultimately obtained a writ of execution on the judgment. The writ was served on Smith in January 2007, and returned with a payment of $50, leaving an outstanding balance, including interest, of $43,448.22. In September 2007, Zorn filed a motion for criminal contempt, alleging that Smith had failed to make any payments toward the debt or disclose financial documents as ordered. The court denied the motion, explaining that only civil contempt was available to Zorn under the rules.

¶ 5. Zorn filed another motion for contempt in March 2008, as well as a motion for renewal of judgment and an “ancillary amended complaint” naming the trial judge as a defendant. In May 2008, Zorn filed a “motion for summary judgment.” The motions were largely incomprehensible. The motion for contempt, for example, stated that: “since the boycotting of Smith the defendant is under larceny by extortion Model Penal Code 223.4 as well as the court's failure to find that Smith was in his official capacity in part at the time of the fraud.” The court noted, correctly, that there was no legal basis for amending complaints and moving for summary judgment six to seven years after final judgment had been entered in the case. The filings are replete with claims that Smith engaged in conspiracy, racketeering, and organized crime, and that the trial judge was complicit in such acts.

¶ 6. Treating the “amended complaint” as a motion to disqualify the trial judge, she referred the matter to the administrative judge. See V.R.C.P. 40(e). Disqualification was denied in September 2008. In the meantime, in June and September 2008, Zorn filed more papers with the superior court about complaints made to the FBI and IRS over the court's denial of his motions, claiming the court's actions were unconstitutional, conspiratorial, and treasonous. What the court was expected to do with these filings was not clear, except that Zorn sought “revestment” of his judgment order. Also in September 2008, Zorn filed another motion for summary judgment “pursuant to new facts,” but reflecting old history and requesting no relief actionable under law. The court found none of the filings warranted by the rules.

¶ 7. Shortly thereafter, Zorn filed a “motion in opposition” to the administrative judge's order and a motion for “entry by default for summary judgment.” These requests were denied. In December 2008, Zorn filed a document entitled “Motion to compel summary judgment by violation of the State of Vermont and or officials as judges to violate higher Court orders and Supreme Court orders.” Zorn also sought an interlocutory appeal, which was denied.

¶ 8. In January 2009, the court issued two orders. One denied Zorn's contempt motion for discovery violations for lack of any underlying orders or requests for discovery. The second denied Zorn's renewal-of-judgment motion for lack of a new and necessary complaint on the debt, but outlined the method by which Zorn could refresh his judgment against Smith.

¶ 9. In a separate order, the court directed Mr. Zorn to show cause, in five pages or less, why he should not be sanctioned under Vermont Rule of Civil Procedure 11(c) for filing five motions between March 2008 and September 2008 lacking legal and evidentiary support. The procedural and substantive deficiencies in these filings were spelled out. Instead of addressing the court's order, Zorn submitted another lengthy filing expressing frustration with the court's failure to enforce the arrest warrant vacated seven years earlier, and reiterating his allegations of “extortion,” “racketeering,” and a “fully orchestrated conspiracy” between Smith and the judges.

¶ 10. In its subsequent January 2009 order, the court sanctioned Zorn under Rule 11 for violating the rules' pleading and procedural requirements. Continuous dealing with Zorn's repetitive and unwarranted motions, the court reasoned, would undermine its allocation of resources to promote the interest of justice for all litigants. The court concluded that the conduct described in its earlier order violated Rule 11(b)(2) and (b)(3) and that sanctions should be imposed.

¶ 11. Turning to an appropriate sanction, the court recognized that its order must be “limited to what is sufficient to deter repetition of such conduct.” V.R.C.P. 11(c)(2). It expressly sought to deter future repetitive and unwarranted filings, while allowing Zorn court access. Based on these considerations, the court directed that the Rutland Superior Court clerk “refuse to accept for filing any future pleading, petition, complaint, motion, letter, or other document from Mr. Zorn unless signed by an attorney licensed to practice in the State of Vermont in accordance with Rule 11.” The court explained that its sanction would help ensure prospective compliance with the requirements of Rule 11(b) and deter repetitive filings, while permitting access to the court. This appeal followed.

¶ 12. Zorn's submissions on appeal largely mirror his filings below. There are extensive allegations of misconduct by the judges who have dealt with this and his other cases. The briefing is generally difficult to follow, as in the following statement of the case:

The Rutland County Superior Judge Teachout, has a continuous prejudice of against plaintiff appellant, uncontested by her outrages, acts of difiance [sic] of the rights to join the partys [sic], herself, and the judges, in which she states the plaintiff appellant is frustrated by her actions, which is total destruction of the due process rights of the contract rights of mandate rule ....

Nevertheless, we infer a challenge to the court's imposition of its sanction under Rule 11(c), and address that issue. See Beyel v. Degan, 142 Vt. 617, 619, 458 A.2d 1137, 1138 (1983) (mindful of appellant's pro se status, the Court reluctantly addresses issues apparently raised on appeal, notwithstanding appellant's failure to comply with appellate rules on adequate briefing).

¶ 13. We affirm the trial court's decision as fully within its discretion, see State v. Delaney, 157 Vt. 247, 256, 598 A.2d 138, 143 (1991) (Supreme Court reviews decision to impose sanctions under Rule 11 for abuse of discretion), except in two particulars. First, absent finding a broader pattern of pleading misconduct beyond this case, the sanction needs to be limited to this case and matters properly arising within this case only. Second, the sanction as issued would preclude Zorn from even a cogent claim of indigence, so it must be modified to allow Zorn the opportunity to assert and demonstrate, pro se, that he is without the resources to comply with the court's order.

¶ 14. Otherwise, the trial court's process was authorized. Under Rule 11, any document submitted to the court is certified to present allegations supported by evidence and legal contentions warranted by law. V.R.C.P. 11(b)(2), (3). Upon belief that these requirements have been violated, the court may issue an order describing the specific conduct in question and direct a party to show cause why no violation should be found. V.R.C.P. 11(c)(1)(B). After considering the party's response, the court may impose a sanction that is “limited to what is sufficient to deter repetition of such conduct.” V.R.C.P. 11(c)(2). The superior court followed this procedure.

¶ 15. Sanction by the court was warranted under the rule. The court identified five filings that plainly violated Rule 11. The filings were repetitive and unsupported by fact or law. These findings are not discernibly challenged on appeal. In response to the show cause order,...