Deans v. Escambia County—Hearing on Motion to Dismiss with Prejudice

22 March, 2001

PROCEEDINGS

THE COURT: Dr. Dean, I'm Judge Skievaski and I certainly know Mr. Messer and Mr. Godwin and Ms. Bernau. This is before me on the Motion to Dismiss filed by Mr. Messer on behalf of a number of named defendants. The Court has reviewed those Motions. The Court has reviewed the complaint filed by Dr. Dean. The Court has received from Dr. Dean his response to the Motion to Dismiss and what is called a Motion to Amend.

I'll entertain the Motions to Dismiss at this juncture. Everyone recognizes --well, this has not been noticed for hearing on the Motion to Dismiss filed by Mr. Magaha and Ms. Frazier, who was incorrectly named as Franz in the complaint, so that's not before me at this juncture, although I will have some discussion regarding that perhaps if time permits after this hearing.

There are, once again, a number of Motions to Dismiss that have been filed. A number of them are very similar, particularly as they relate to the named county commissioners. Those are Mr. Martin, Mr. Walker, Mr. Godwin, Mr. Smith, Ms. Lander. And so hopefully --we have 30 minutes set. Hopefully, we'll be able to get to all that today. I don't know if there's any peculiar things that may require some --Now, Dr. Dean, you must understand this is not an evidentiary hearing so I don't know if any of these individuals were brought here at your request to testify. This is not, once again, an evidentiary hearing. [The judge apparently misjudged the intentions of three citizens who had come in to observe]. Mr. Messer.

MR. MESSER: Judge, Jim Messer for the county. With me is Mr. Godwin, one of the named individuals who is just here to represent all the other named individuals. He's one of the attorneys in the county attorney's office. And I think that the way I'll start is just to give a little background and then talk about two conceptual issues, and then briefly touch on the Motions to Dismiss, because I don't know that they [the Motions to Dismiss] are as forceful to the Court as the general concepts.

THE COURT: Let me interrupt you to tell you this: Both sides be very aware, I'm very familiar with the background having reviewed this. The court did not just pick it up and look at the Motion. The Court has read the statement, the Court has read the entire record, so the Court is very familiar with the background. [emphasis added]

MR. MESSER: With that in mind, Judge, just let me move on to two concepts that I think should act forcefully to allow this Court, indeed, perhaps even to mandate this Court, to Dismiss the actions with Prejudice, that is so that they would never be brought again. I don't quite know which one ranks higher. There are two [general concepts]. One is a Constitutional concept and the other is the fact that there is no statutory legal basis for the lawsuit.

But assuming that the Constitutional [concept] has precedence, let's talk a little bit about Constitutional law. I reach back in my memory to my Constitutional law class too long ago [emphasis added] and I coupled that with the Judge's past experience in criminal law. I thought perhaps these two illustrations could make it not only easier for the Court to understand, but perhaps for everyone else to understand, why it is legally virtually impossible for any of the named defendants to violate anyone's Constitutional rights--and we go back to the classic illustrations.

In my class, it went something like this: We all know that it's wrong for the state to coerce a confession, but the analogy goes something like this. If Mr. Dean or anyone else were to, say, beat me up and make me confess to a crime, they would not have violated my Constitutionalal right. Simply put, individuals can't violate other individual’s Constitutional rights. The Constitution and the Bill of Rights protect us against state action, not individual action.

The same thing with search and seizure, if one of us were to break into the other's house, that might well be a criminal offense, and we shouldn't do it, but that would not be a Fourth Amendment search and seizure issue. Now, if we change the facts and one of us were a police officer--different result. If one of us had some kind of a duty under the state law to take some kind of action, that might be a different result.

But on this case, Judge, none of the individuals named are either state enforcement officers--except for, perhaps, the code enforcement officers, who are county enforcement officers. But there is no statutory or common law duty on them that they acted under that would be violative of any kind of Constitutionalal rights, either federal or state.

So I would submit to the Court and to Mr. Dean that there just aren't any set of circumstances that can be shown where these people could individually violate his rights. For example, when we get to the commissioners, it's possible that the county could have violated Mr. Dean's Constitutional rights under the right sort of circumstances. But again, we have a statute that says that if that's true, then sue the county, not the individuals. So that was one concept that I wanted to discuss with the Court--the fact that how can any individual, absent any sort of duty under state law to act someway or forebear from acting toward Mr. Dean, violate his Constitutional rights?

And the other concept I wanted to discuss with the Court --Judge, I hand you a copy of 70.51, Florida Statute. Give that to Mr. Dean. And I'll tell you the truth, Judge, I found this out in the course of trying to analyze this complaint because when I initially looked at it I assumed, for the sake of argument, that Mr. Dean was correct, and he could bring a cause of action based on this particular statute, 70.51.

And if we look at Section 24 of that statute, it specifically states the procedure created by this section is not itself, nor does it create a judicial cause of action. I've highlighted everyone's copies. So to say that a violation of this statute somehow either gives a cause of action or creates a duty on the part of any of these named individuals to act a certain way is, according to the words of the very statute, legally impossible.

What 70.51 does is create a supplemental remedy for a landowner who chooses to avail himself of it if he believes he's aggrieved by government regulations.

THE COURT: Let me ask you something, [the Judge is onto Mr. Messer. He knows Messer didn't read the case—about which he’d previously been warned]
Mr. Messer. Is Escambia County Ordinance 95-9 established under the authority of 70.51? This whole thing has come about because of –

MR. MESSER: No, Judge.

THE COURT: --some confusion about --exactly.

MR. MESSER: To cut to the nub of it, I believe the code enforcement officer faxed Mr. Dean….

THE COURT: Just answer this question. The prosecution of Dr. Dean for the alleged violation was not under this statute [70.51] or –

MR. MESSER: Not under this statute.

THE COURT: --any other ordinance code, other than 95-9, right?

MR. MESSER: Yes, sir.

THE COURT: So this is irrelevant. Other than the arguments by Dr. Dean that he was confused as a result of some intentional misleading or negligent misleading by somebody.

MR. MESSER: Exactly, which is the second reason I say that this could never be used as the basis of a cause of action.

THE COURT: And there's nowhere in his complaint that it is asserted in any way as a basis for a cause of action, is it?

MR. MESSER: 70.51?

THE COURT: Uh-huh.

MR. MESSER: I think it does, Judge.

THE COURT: In terms of predicating his claim on that?

MR. MESSER: It's hard to tell. I mean I defer to the Court. And just to tie up a loose end in case the Court wants to pursue this, just to make sure we're on the same --I don't think this is part of the case, Judge, but if we're going to get into the issues somewhere down the road --and again, I just want to make sure that the Court has the benefit of the legal research that I've done so it can make a decision whichever way it goes.

But if we're going to talk about assuming, for the sake of argument, that a county employee gave out wrong information, which is not the way we want to run our county, but if we ask ourselves in terms of the law does that serve as a cause of action, we've got the case that I've just provided of Hillsborough County v. Morris, 730 So. 2nd 367. It's a Second District case from 1999.

To make a long story short, it involves a Hillsborough County --it wasn't a code enforcement officer-- it was an officer in their land management office who gave out incorrect information to a developer. The Court said, among other things, that a city is not liable for a building inspector's furnishing of incorrect information, a town is not liable for furnishing incorrect information regarding certificate of occupancy. It sort of goes down a list of factual instances, with the general theory of law being that there's no common law or statutory duty on a government to give the correct information to people who ask for it.

Again, that just goes back --if the theory is that the code enforcement officer gave bad information, well, that's inappropriate and that should be dealt with in some other form. But that doesn't serve as a basis for a common law or statutory duty to posit a complaint on. Judge, I trust the Court's representation, of course, that they have read the Motions to Dismiss. I don't want to go into them in detail unless the Court –

THE COURT: I have some questions, but I want to hear from Dr. Dean in response to this. But let me make a few observations. This case, I'll be quite frank with you, reminds me of the old proverb about straining at a net, but you may be able to swallow a camel. It appears to me that Dr. Dean, as I've reviewed the case, is a citizen who just doesn't want to have to do something the government tells him unless they tell him why he has to do it [but mainly, what gives them the authority to tell me to do it?]. As a result of a lot of confusion, this generated a case that has blown, in my view, completely out of proportion. Dr. Dean wants to fight city hall, which is his right.

But, Dr. Dean, what you have to understand--you're complaining about officials in the county not dotting their Is and crossing their Ts, and not doing things completely in compliance with certain requirements. You, as representing yourself pro se, must understand that you've got the same obligation when you file a complaint to do the same thing, to follow the law precisely and be in accordance with the law. Your complaint is clearly poorly written. It is not a good complaint at all, but you're not, apparently, trained in the law. What's your doctorate?

DR. DEAN: I'm a physician.

THE COURT: Okay. You're clearly articulate in your complaint, but there's certain things that you don't understand so, you haven't followed those requirements because you're educating yourself in this area. I want you to understand that you're going to have to be held to the same standard of a litigant and lawyer that comes in and files a complaint. You've got some real problems with your compliant. But the question is whether or not a Dismissal with Prejudice is one that must be ordered by the Court as opposed to Dismissal without Prejudice, at least to some of the counts. And I'II clarify my position on that in a moment. Let me hear you respond to Mr. Messer's position.

DR. DEAN: Well, Your Honor, I'm glad you brought this up about me basically being an amateur. I'm obviously out of my area here and I am learning every day. I've got my homework and my books and I'm trying to learn. I've always believed in this country--that we were a government of laws, and not men. That discussing whether the government must dot its Is and cross its Ts--are we to overlook the transgressions of the government when they don't [dot there I’s and cross their Ts]? Because, [for example], if our speedometer is broken and it's not registering exactly right, we could get pulled over for exceeding the speed limit. If we measured something wrong, [however] that the government had jurisdiction over, of course, they would come down on us. I think that the government should be held to even higher standards of compliance with the law than the citizens.

Mr. Messer has already talked about the Constitution. In the first part of the Florida Constitution --and I'm not going --I don't want to beat this stuff to death, but [reading from the Florida Constitution] “Political Power: All political power is inherent in the people.” Not the government, but in the people.
Second, is that “the enunciation herein that certain rights shall not be construed to deny or impair others are reserved to the people.” Now, that's the Ninth Amendment--and that's [Ninth Amendment] the first [Article]statute in the Florida Constitution. Judge, you asked Mr. Messer, what ordinance or statute covers the Special Master. He said, “It's hard to tell.”

If it's hard to tell for him, as an attorney, employed by the county--think of the problems and the confusion that those of us who -- You have already mentioned I'm an amateur at this. I mean, we're out here trying to follow the law, trying to be good citizens, trying to raise our children to be responsible citizens, yet even the government says they don't know what the law is.

Now, I do have some additional documents which I have just filed. I have copies [Copies distributed]. These are individual responses to each of the individual Motions to Dismiss. And, again, we could go through these point by point, but I'd rather not. But some information that has not been included in the previous Motions and filings, I think, directly relate to this. This is a response to Mr. Godwin. In fact, I'II give him one personally. Although I said that it was mailed, it wasn't mailed because I knew it wouldn't get here in time, so I can hand deliver that. Your Honor, I would like to give you a copy here. If you will direct your attention to the last two pages, Exhibit A and B. Now, Exhibit A is --Mr. Godwin sent me a letter dated the 2nd of February, where he stated that the authorization for the Special Master was County Ordinance --Section 30.32 of the Land Development Code, and also the County Purchasing Code.
I went to the purchasing manager, and obtained from the payroll officer, a copy of this purchase order here, dated December 10th, 1999 [Exhibit A], signed by Kathy Spencer. You can see that the authorizing ordinance that gives the Special Master any authority whatsoever is Ordinance 97-60.

And as Mr. Messer just pointed out, and as I pointed out during the hearing on the 15th of August--Ordinance 97-60 did not apply to me [emphasis added], and that the county did not do anything in accordance with Ordinance 97-60 [emphasis added]. So this is apparently what the county is alleging is [that 97-60]--gives the Special Master the authorization.

Now, it also is signed by Kathy Spencer.
We can go to the County Purchasing Code here, Procedure Number PP020, the second page [Exhibit B]. And, here again, the purchasing manager --they sent me this and they put an asterisk on here on paragraph 4-A, which authorizes someone like Kathy Spencer the power and the authority to sign this contract. Yet paragraph 4-B limits the authority for signing formal contracts to the county administrator [emphasis added].

Now, there is no provision that I know of that authorizes the county administrator to delegate that authority down to somebody who works for the purchasing department.

And, of course, when I got this, it raised further questions in my mind. Since Mr. Smith's original contract under 95-9 expired on the 23rd of January of 1998, and this purchasing order, which allegedly authorizes him to do what he is doing every week, was not signed until December 10th, 1999. This raises more questions--and those questions are:
What authority, if any, did Mr. Smith have between the 24th of January, 1998 and the 10th of December, 1999? What authority --what happened to Ordinance 95-9, also known as Section 30.32 of the Land Development Code? And in what case can they now use a simple purchasing order to enable someone to have quasi-judicial powers--which are equivalent to any judge--to perform the duties that he is claiming that he is authorized to do?

THE COURT: Let me ask you something, Dr. Dean.

DR. DEAN: Yes.

THE COURT You filed a Notice of Appeal on the case involving the order or amended order –

DR. DEAN: Yes, I did "

THE COURT: --issued by Mr. Smith.

DR. DEAN: Yes.

THE COURT: And I know that that ties in with some counts that have been alleged against Ms. Frazier and Mr. Magaha.

DR. DEAN: Yes, sir.

THE COURT: I presume you're going to pursue your Appeal before the circuit court. Is that correct?

DR. DEAN: Yes, sir.

THE COURT: I made the comment about fighting city hall. In fighting city hall, you're fighting a bunch of individuals. Now Mr. Dean --or Dr. Dean, you're fighting them, but as it has been brought out in the Motion to Dismiss, as to each one of those county commissioners, you should be filing your complaint against Escambia County if you believe there's a claim against the county for anything that occurred here.

As it relates to Mr. Godwin --I mean you are once again throwing something at everybody. And you have some questions--some legitimate questions. The ultimate question I'm going to have in terms of Dismissal with Prejudice is --Mr. Messer, if there's an argument that Mr. Smith acted outside of any jurisdiction, why would that be Dismissed with Prejudice? He may have to straighten out his complaint to clarify what he's asserting against Mr. Smith--but you have just moved to Dismiss on the basis of judicial immunity or quasi-judicial immunity. And Dr. Dean is bringing up some good points about the question of whether or not he continued to have jurisdiction after his contract expired that was originally created pursuant to 95-9.

MR. MESSER: And a simple answer, solely on, I guess, Magistrate Smith –

THE COURT: Special Master.

MR. MESSER: Special Master Smith, is that, that hasn't been alleged. I agree with the Court as a matter of law, but that's simply not what's alleged in the complaint. So, to the extent that there would be an amendment, I suppose that that would be an option. But to the extent that it exists in the complaint, I believe that Special Master Smith is entitled to quasi-judicial immunity. The rest of these -- I don't think that I will qualify my arguments on any of the other individuals.

THE COURT: Let me say this, Dr. Dean. Clearly, this complaint needs to be Dismissed. In my view, after having reviewed this very carefully--because you don't set forth clearly what your causes of action are or what legal causes of actions you might have. You have some legitimate complaints, perhaps, in terms of what happened. But some of those are not actionable and some of them are not actionable against any individual you've named.

[Which means, I presume, that the judge admits that some of them are actionable]

I mean, you've not even sued the county. The question I'm trying to deal with is, what, if anything, is Dismissed with Prejudice.

I want to caution you about this. You've elected to go forward on your own, and that's certainly your right. But by doing this, you need to be aware that under our law and under Chapter 57 of our law, if you're not careful what you bring in the way of a Claim, you can end up getting hit with the attorneys' fees that are incurred in defending against that Claim. Right now, I'm trying to review this in a way and deal with it in a way so that you, as a citizen just trying to have your grievances heard, aren't slapped with some punitive fees at some point in time.

I see some real significant problems with what you're trying and the way you're trying to do it--but not necessarily what you're trying to do in terms of defending what occurred in that quasi-judicial proceeding in front of Mr. Smith. I see some real issues there. But they're not being brought out in a way that is in your best interest, Dr. Dean.

DR. DEAN: Your Honor, I think a lot of the issues that have come up subsequent to that time have really --it's that every time I turn over a rock, something else crawls out. I've characterized the county in this case as ‘the gang that can't shoot straight,’ because there is very little throughout--from the start of this process--that the county did in accordance with the law. This is not just that they failed to dot an I and cross a T. There are real serious issues here.

Just to diverge a little bit. We're all aware of what happened with the submarine crew [that sank the Japanese fishing boat]. And what did the captain do? He stood up and said: “I screwed up. I'm responsible.”

I spent 24 years in the military--in the infantry, and as a medical officer in both the Army and the Navy. One of the things in our training is always, when you screw up, the first thing you do is stand up and admit it and take the blame--and you fix the problem.

I thought, as I pointed these things out to the county, that that's what they would do. I thought they would say: “Well, you're right. Let's fix that.”

But we haven't seen that. What I've seen is a pattern of subterfuge, of twisting the law, of apparent cover-up. It's pervasive and I haven't seen anybody come up and say, “Yes, you're right. Let's fix this. Let's fix this problem.”

We've clearly got a problem here. We have a Special Master that I have not been able to find a shred of legal authority for his doing what he's been doing for the last two years. In further going into this, I've looked at his invoices. His first contract required certain provisions of his invoices. He was required to name the place and the person at each of his hearings. I've got his invoices for the last two years when he hasn't been under a contract--and he hasn't done any of this.

THE COURT: Doctor, the thing is, a lot of what you say makes a lot of sense, and I understand exactly where you're coming from. I can say that probably this case would not be filed if people perhaps would have called you into their office and had a meeting with you and talked with you. I understand that. But failure to cross all Ts and dot all Is may be mistakes, but they're not always actionable in the law in terms of a lawsuit. Once again, I refer to straining the net and swallowing the camel. People do make mistakes.

Let me --even though this has not even been Noticed for a hearing, to try to save you some time, me some time, and possibly you some money, is confront you with perhaps the county's -- Mr. Magaha's and Ms. Frazier's Motion to Dismiss, where you've sued them because you claim that they have violated your rights by not doing certain things required by the Rules of Appellate Procedure. Now this wasn't Noticed for hearing, but are you prepared --would you be willing to address that today?

DR. DEAN: Sure.

THE COURT: Okay. Well, have you gone back and read the Rules of Appellate Procedure?

DR. DEAN: Yes, sir.

THE COURT: And you understand their position is that there is no requirement to do the record in the fashion that you think they should because this is a review or an Appeal from an administrative action?

DR. DEAN: Yes, sir. In fact, I've got a response to that right here. ….. I could direct you to just two parts of this. One is in paragraph three on page two, where they're referring to Rule 9.100 --I'm sorry, the second paragraph, where they're talking about Rule 9.100(i)I, where it says “a record shall not be transmitted to the Court unless ordered.” However, Rule 9.100(f) I, Applicability, which precedes – [interrupted by Ms. Brenau] I'm sorry, you don't have it?

MS. BERNAU: No. That's a copy of the other.

DR. DEAN: I'm sorry.

MS. BERNAU: That's okay.

DR. DEAN: Page two, second paragraph, where the record --it says: “A record shall not be transmitted to the Court unless ordered.” But go to paragraph three here, where --Rule 9.100(f) I, Applicability, which actually precedes Rule 9.100(i) I mandates that “the following additional requirements…” --these are the requirements that follow in applicability – “invoke the jurisdiction of the Court described in Rule 9.030(c)(2) and (c) (3).” But my case was under 9.030(c)(1)(C) I, not these others where the additional requirement does not require that the record to be transmitted to the Court.

THE COURT: Did you go further and look at Rule 9.190(c) (4)?

DR. DEAN: I probably did, Your Honor. Right. Because this, I think, is even more egregious, because in this case the Defendants left out -- they had the ellipses in there --the dot-dot-dot-- where it says --the missing phrase that they left out is, “not governed by the Administrative Procedures Act.” As far as I'm concerned, from what I've been able to find out, this is covered by the Administrative Procedures Act. So, by deliberate omission in phraseology, the meaning of that rule was skewed 180 degrees.

THE COURT: What makes you think you can bring a cause of action or should bring a cause of action against Mr. Magaha and Ms. Frazier for these complaints when you have the Appeal before Division A, Judge Geeker –

DR. DEAN: Geeker, yes, sir.

THE COURT: --in which you can address to ensure that all of this done in a way to perfect your Appeal?

DR. DEAN: Your Honor, we filed the Notice of Appeal on the 25th of October, and I kept waiting around for a docket so that I could proceed with my Appeal and nothing happened. I came in and I talked to the people in the clerk's office. They said: “Oh, this is an administrative matter. We don't have to index it. We don't have to certify it.” Yet, there is no way that I could proceed with my Appeal until the county clerk performed their ministerial mandatory task of processing the paperwork.

THE COURT: I want to cut it short here because you're a very smart man, but you don't know all you need to know on the law. I'm going to grant the Motion to Dismiss with Prejudice as to Mr. Magaha and Ms. Frazier; that shouldn't be in here at all. Now, as it relates to these other issues here, your complaint is going to have to be redone. In terms of the individual county commissioners, I'm going to Dismiss with Prejudice. If you want to sue the county, sue the county. Perfect your claim.

As it relates to the other individuals named, at this juncture, because I'm not sure what you're asserting against all of them, I'm going to Dismiss without Prejudice. However, as I --I referred you to Chapter 57. I suggest that you go back and read that so that when you prepare an amended complaint you're very careful on what you allege, because at some point in time --I'm sitting here looking at a case going…, You know, you can't blame Dr. Dean for getting pretty irate. Dr. Dean has some good points he's raising. But, Dr. Dean, if you're going to raise them, you’d better raise them right, because if you bring a claim that has no merit in the law, you can get penalized with attorney's fees.

I agree with you that it appears this is one of those situations where no one wanted to really stand up and take accountability and say, “Dr. Dean, come in. Let's talk.” There's some issues here. I'm not ruling on the claim that may ultimately be brought as to Mr. Smith not --no longer having jurisdiction as Special Master. I don't know. There may be some good answers for that. But there's certainly questions that arose that if they handled --had been handled in a way -- (Interruption by telephone.)

THE COURT: Once again, I don't disagree with you that this probably could have been handled in a way to avoid all this. Mr. Messer, would you prepare the order?

MR. MESSER: Yes, Judge. Do we have a time limit for filing an amended complaint?

THE COURT: What I would suggest --may I suggest something? May I suggest that I Dismiss without Prejudice and grant him the opportunity to perfect his Appeal and complete that Appeal in the circuit court before requiring him to file any complaint? Because I don't know what's going to end up happening up there. Because he may be raising the issue before Judge Geeker as to the jurisdiction of the Special Master, as well as any arguments as to the unConstitutionality of this ordinance as provided to --regarding the fence. That may save a lot of time and trouble for everybody. It may or may not. But would you have any objection to that, Mr. Messer?

MR. MESSER: No, sir.

THE COURT: Dr. Dean?

DR. DEAN: Well, I have a few more questions, obviously because I'm an amateur, and I'm -- so we are Dismissing completely Mr. Magaha and Ms. Frazier?

THE COURT: Absolutely. There's no basis to sue them here, Dr. Dean. Although, you may not agree with me on that.

MR. MESSER: As well as the commissioners?

THE COURT: I won't tell you how to operate on a patient, but if you want to Appeal on that, I guess you have the right to do that. Go ahead.

MR. MESSER: Just for the record, as well as the commissioners?

THE COURT: Oh, yes. Dismiss individual -- commissioners are Dismissed. I mean he can sue the county.

MR. MESSER: And a suit can be brought in the name of the county?

THE COURT: That's right.

MR. MESSER: The other named individuals are Dismissed without Prejudice pending the outcome of the –

THE COURT: Pending the outcome of that action up there. He can file a suit. His claims --I can't sit here and give you any guidance, Dr. Dean, about what kind of claims you might –may or may not have against other individuals, but right now what you've done is not sufficient in terms of stating a cause of action, so I'm just going to Dismiss without Prejudice as to the other named individuals.

DR. DEAN: Your Honor, can we get a court ordered order to --on these individuals?

THE COURT: Well, Mr. Messer is going to prepare an order on it, on all of it.

MR. MESSER: I'll send you a copy.

DR. DEAN: In the future, I would appreciate it when --if we're going to set up hearings or meetings or anything like that, if you would contact me. I'm sure if I was an attorney, the attorney probably would have gotten that kind of courtesy, and I would appreciate that as well.

MR. MESSER: I'd be glad to.

THE COURT: Ms. Bernau, you prepare the order as it relates to Mr. Magaha and Ms. Frazier, all right? And thank you, Dr. Dean.

DR. DEAN: Your Honor, could I ask one other question?

THE COURT: Yes, sir. –

DR. DEAN: The other issue with regard to Mr. Magaha is the issue regarding his --basically illegal, inadequate invoices. This is directly one of -- it was not in the complaint because I didn't have this information at the time. That is what I brought out today, was the fact that –

THE COURT: I'm only going on what I've got here, sir.

DR. DEAN: Right.

THE COURT: I mean how you --what you do regarding Mr. Magaha in some other capacity --what you asserted in your claim related to alleged actions -- by Ms. Frazier, primarily as to the preparation of the record. I don't --you know, I make no judgment about something that's not before me.

DR. DEAN: Okay.

THE COURT: But if it's going to be something involving this, you can just save it for when this Appeal is resolved, and you find out whether or not, indeed, you have any injury.

DR. DEAN: Well, I guess the point I was making here is that -- I haven't even had a chance to get Discovery. Everything that I've found so far has been almost by accident. I think I've found quite a bit. I think with proper Discovery I would probably find something that would satisfy you as a cause of action. So I would request that you Dismiss Mr. Magaha, but not with Prejudice.

THE COURT: Well, it's with Prejudice as to that Claim that you've made involving the Appeal, okay? I mean if your neighbor does some damage to you and the case gets Dismissed with Prejudice, it doesn't mean that you can't bring a claim for something unrelated to what the original claim was for.

DR. DEAN: I understand .

THE COURT: And you haven't brought a claim against Mr. Magaha for anything other than the alleged failure of Ms. Frazier to do some things. So, once again, that's not, in my view, actionable, okay? Prepare the respective orders, and thank you. In light of my ruling, Mister --or Dr. Dean, I'm not --I'm going to rely on the orders that I'm going to be handed. I don't --I won't be issuing this order [referring to a draft order I had prepared regarding correcting the record with regard to the correct spelling of Teresa Frazier's name] because that will be handled in another form, okay?

(The hearing was concluded at 2:40 p.m.)

More Published Works by Ward Dean, MD