VASKO v. USA

Filing 40

PUBLISHED ORDER denying 38 Motion for Reconsideration. Signed by Judge Marian Blank Horn. (dls) Copy to parties.

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No. 12-370C
Filed: October 22. 20'13

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CAROL ANN VASKO,

Plaintiff,

2013

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Pro Se Plaintiff; RCFC 60; Motion
for Reconsideration of Judgment.

V.

UNITED STATES,

Defendant.

Carol Ann Vasko, Austell, GA, pro se.

Loren M. Preheim, Trial Attorney, Commercial Litigation Branch, Civil Division,
Department of Justice, Washington, D.C. for the defendant. With him were Bryant G.
Snee, Acting Director, Commercial Litigation Branch, and Stuart F. Delery, Assistant
Attorney General, Civil Division.

ORDER
HORN. J.
Pro se plaintiff, carol Ann Vasko, filed suit in the United states court of Federal
claims on June 11, 2012, alleging in her complaint breach of contract and tort claims
related to her eviction from 1721 Nathan Lane, Austell, Georgia by the United States
Department of Veterans Affairs (VA). Plaintiff in her complarnt and in later filings

claimed damages for "the value of the real estate at 1721 Nathan Lane, Austell, Georgia
and the cost of replacement or repair" of plaintiff's and her family's personal property.
The full findings of facts from the prior opinion are not repeated here, but are
incorporated into this decision. Plaintiff's complaint was accompanied by an Application
to Proceed ln Forma Pauperis, which the court granted.

In response to plaintiff's original complaint, defendant filed a motion to dismiss for
failure to state a claim or, in the alternative, for summary iudgment. In response,
plaintiff filed an amended complaint in which she added the allegations of a taking under
the Fifth Amendment to the United states constitution, as well as a deprivJtion of
plaintiff's various constitutional rights, including due process, equal proteciion, ano a
request to be free from unreasonable search and seizure. Although the pro se plaintiff
subsequently filed a motion to withdraw and strike her amended complaint, which the
court granted, both parties refer to the amended complaint in their subsequent filings.

Defendant referred to the amended complaint in its response to plaintiff's supplemental
pleading. In response to plaintiff's amended complaint, defendant, again, filed a motion
to dismiss, or in the alternative, for summary judgment, to which plaintiff responded.
Plaintiff also filed a motion for leave to file a supplemental pleading and attached her
First Supplemental Pleading, in which she "incorporate[d] herein by reference" portions
of her amended complaint and attached exhibits. The sequence of filed and withdrawn
pleadings has clouded the procedural history of the case, but recognizing plaintiff's pro
se status, the court reviewed and considered all of plaintiffs submissions carefully and
afforded plaintiff liberal construction of the pleadings. See Haines v. Kerner, 404 U.S.
519, 520-21, reh'q denied, 405 U.S. 948 (1972\.

After reviewing all the numerous filings, the court dismissed Ms. Vasko's case,
with prejudice, on August 19, 2013. The court dismissed her breach of contract and
takings claims for failure to state a claim upon which relief can be granted, and her
constitutional and tort claims for lack of subject matter jurisdiction. see vasko v. United
States, 112 Fed. Cl.204 (2013). Now under consideration is plaintiffs September 3,
2013 motion to (1) "reassess its dismissal" of her takings and breach of contract claims,
and to (2) "grant an order allowing the case to move forward." Plaintiff also contends
that the court failed to consider one of her earlier unfiled submissions to the court.
Under Rule 60(b) of the Rules of the United States Court of Federal Claims
(RCFC) (2013), a court may, "[o]n motion and just terms," relieve a party from a final
judgment for any of the following reasons:

(1)
(2)
(3)
(4)
(5)

(6)

mistake, inadvertence, surprise, or excusable neglect;
newly discovered evidence that, with reasonable diligence, could
not have been discovered in time to move for a new trial under
RCFC 59(b);
fraud (whether previously called intrinsic
extrinsic),
misrepresentation, or misconduct by an opposing party;
the judgment is void;

or

the judgment has been satisfied, released, or discharged; it

is

based on an earlier judgment that has been reversed or vacated; or
applying it prospectively is no longer equitable; or
any other reason that justifies relief.

RCFC 60(b).

Reconsideration of a judgment is not intended to permit a party to retry its case
when it previously was afforded a full and fair opportunity to do so. The United states
court of Appeals for the Federal circuit has stated that: 'iThe decision whether to grant
reconsideration lies largely within the discretion of the [trial] court." yuba Natural Res..
Inc. v. United States , 904 F .2d 1577 , 1SB3 (Fed. Cir.), reh,q denied (Fed. Cir. 1990). tn
a motion for relief from final judgment, "'[t]he movant . . must do more than merery
reassert[ ]arguments which were previously made and carefully considered by the
court."' Osaqe Tribe of Indians of Okla. v. United States, 97 Fed- Cl. 345, 34g (i011)
(quoting Bannum. Inc. v. United states, 59 Fed. cL241,243 (zoo3)) (atterations in
original) (discussing the standards applicable to both RCFC 59(a) (2013) and RCFC

60(b)). "'[T]he moving party must show: (1) the occunence of an intervening change in
the controlling law; (2) the availability of previously unavailable evidence; or (3) the
necessity of allowing the motion to prevent manifest injustice."' ld. (quoting Matthews v.
United States, 73 Fed. Cl. 524,525 (2006)) (alteration in original). A motion for relief
from judgment is not an opportunity to relitigate one's case or present evidence that the
movant could have brought earlier. See Fiskars. Inc. v. Hunt Mfq. Co. ,279 F.3d 1378,
1383 (Fed. Cir.2002) ("We see no reason why [movant] should be entitled to a second
opportunity to present its case. Just as Rule 60(bX6) is unavailable to reopen a
judgment on grounds of newly discovered evidence (that existed at the time of trial), it is
unavailable to reopen a judgment on the grounds that new evidence has come into
being after the trial has been concluded.").

"Under Rule 60(bX1), relief may be granted from'judicial error'when
inadvertence is shown and the motion is made within a reasonable time." Patton v.
Sec'v of the Dep't of Health and Human Servs., 25 F.3d 1021, 1030 (Fed. Cir. 1994)).
Moreover, "[u]nder RCFC 60(bX6), a court may vacate a party from a final judgment
whenever appropriate to accomplish justice." AmBase Corp. v. United States, 112 Fed.
Cl. 179, 183 (2013). However, "[t]he court will typically grant retief pursuant to RCFC
60(bXO) only on a showing of 'exceptional or extraordinary circumstances.," McCollum
y. Sec'v of Health & Human Servs.,91 Fed. CI.86,90 (2010) (quoting Louisville
Beddinq Co. v. Pillowtex Coro., 455 F.3d 1377,1380 (Fed. Cir. 2006)); see aiso Fiskars.
lnc. v. Hunt Mfq. co.,279F.3d at 1382 ("Rule 60(b)(6) is available only in extraordinary
circumstances and only when the basis for relief does not fall within anv of the other
subsections of Rule 60(b).").
"A ruling upon a 60(b)(6) motion is within the sound discretion of the court, and is
reviewed only for abuse of that discretion." Mccollum v. sec'v of Health & Human
Servs., 91 Fed. Cl. at 90 (citing Sioux Tribe of
101 (1987), affd,862 F.2d275 (Fed. Cir. 1988)), cert. denied,4gO U.S. 1075 (1989).

"[T]he Federal Circuit has noted that, as,a remedial provision, Rule 60(b) is to be
liberally construed for the purpose of doing substantial justice."' Vessels'v. sec'v of
Seplof Heqlth & Human Servs.,65 Fed. C|.563, 568 (2005) lquoting@
tle Deo't of Health and Human Servs.. 25 F.3d at 1030); r"" elSS@
states, 61 Fed. cl. 511,512 (2004) ("The court has discretion regarding whether to
grant relief under Rule 60(b), 'and the court may weigh equitable considerations in the
exercise of its discretion."' (quoting Dvnacs Enq'q co. v. united states, 4g Fed. cl.24o,

24142 (2000))).

In her Motion for Reconsideration, plaintiff attempts to relitigate her takings and
breach of contract claims, putting forward facts and arguments she previously
presented to the court, and, which were already addressed in the court's August 1g,
20'13 opinion. In her Motion for Reconsideration, plaintiff argues that the court iailed to
consider one of her filings, plaintiffs Response to Defendant's Response to plaintiffs
Motion to strike, filed on september 3, 2013 (hereinafter ptaintiffs September 3, 2013
Filing), in which plaintiff attempts to address her takings claim based on an argument of
adverse possession. This filing was submitted by plaintiff after briefing was complete
and without proper proof of service on the defendant, as required by the court's rules.

See RCFC 5(a)(1), 5.3(b) (2013). Nonetheless, as a courtesy to the pro se plaintiff, the
court instructed the Clerk's Office to file the September 3,2013 Filing, with the court's
leave, and the court reviewed plaintiff's filing and the arguments contained therein.
Plaintiff, in her multiple filings, asserts that she adversely possessed the Nathan
Lane property, and, therefore, her eviction from the propefi by the VA constituted a
taking. As noted in the court's August 19, 2013 opinion, Georgia law, however,
prevents prescription from running on property where there is constructive notice of a
prior mortgage. "Prescription shall not run against the owner or holder of a mortgage, a
deed to secure debt, a bill of sale to secure debt . . . in favor of a oerson who has actual
or constructive notice of such instrument." Ga. Code Ann. S 44-5-176 (2012). In the
August 19,2013 opinion, the court concluded that the deed filed in 1992 berween
Howard S. and Helen A. McKinney and American National Financial, Inc., met the
requirements under Georgia law to provide notice against adverse possession. see
Vasko v. United states,112Fed. cl. at 208, 220. Anv possible defect in the 1992 deed
"was corrected on February 10, 1993, when the security deed was re-recorded to add
the signature of the closing attorney to the closing attorney's affidavit." ld. at 221
(internal citation omitted). Therefore, the court held in the August 19, 2013 opinion that
"[w]hen plaintiff allegedly purchased the Nathan Lane property from Mr. Brown, she at
least had constructive, if not actual, notice of the McKinneys' ownership interest." ld.
Between plaintiff's september 3,2013 Filing and her Motion for Reconsideration,
plaintiff appears to offer three arguments to try to have the court reconsider its decision
that plaintiff's case should be dismissed. In none of these arguments, however, ooes
the plq se plaintiff, Ms. Vasko, offer new facts or argument-. First, plaintiff, in her
september 3, 2013 Filing, contends that she "did not have constructive notice of the
security deed held by Bank of oklahoma as it is defective and was not dulv recorded."
Plaintiff, in her Motion for Reconsideration, also claims that she begin adverse
possession in 1996, and that it accrued before the government claimed poisession. tn
support, however, plaintiff merely repeats assertions she offered to the court before the
August 19, 2013 opinion was issued.

Plaintiff in her september 3, 2013 Filing and her Motion for Reconsideration
refers as well to cases already discussed in the court's August 19, 2013 opinion.
Plaintiff also maintains that, under wells Faroo Bank. N.A. v. Gordon , 292 Ga. 474
(2013), if one document accompanying a deed, such as in attorneyt atridavit, was not
signed, then the deed "was not duly recorded" and cannot provide constructive notice.
Plaintiff continues to misunderstand the holding of the case. wells Farqo holds that a
srgnature can only attest to its own document; it does not say that a missing signature in
a different document, such as in" an attorney's affidavit, would affect a pro[ert! attested
security deed. see id. at 476.1 Defendant in its filings before the August'19,2013

'ln

furtherance of her argument, plaintiff submitted a supplement to her Motion for
Reconsideration, Exhibit A, which the court received october 10, 2013 (supplement).
This supplement, like plaintiffs september 3, 2013 Filing, was not filed wiih proper
service to defendant. Plaintiff includes with the supplement an unrelated attorney's
affidavit by comer Padrick, the closing attorney from ihe McKinney,s mortgage. she

opinion was issued, noted that under Wells Faroo, plaintiff also may have been on
inquiry notice of the 1992 mortgage.
Plaintiff also asserts in her September 3, 2013 Filing that, for the 1993 deed,
"[n]o affidavit of explanation has been attached to the mortgage," referring to Code of
Georgia Annotated section 44-2-18 (1993). Therefore, plaintiff asserts that it does not
provide constructive notice. The affidavit of explanation described in the Code of
Georgia Annotated section 44-2-18, however, is only an option that the recording party
"may" use. Plaintiff provides no reason why simply rerecording the deed and attorney's
affidavit would be invalid. Taking the Motion for Reconsideration and the Supplement
together, plaintiff appears to be arguing that the signature on the attorney's affidavit
"may be a forgery as well." This evidence and argument easily could have been, and
should have been, brought to the court before judgment. RCFC 60(b) does not serve
as a vehicle to relitigate a case. See Fiskars, Inc. v. Hunt Mfq. Co. , 279 F.3d at 1383.
The court repeats that even an invalid attorney's affidavit still does not prevent the deed
itself, as filed in 1992, or as re-filed 1993, from providing constructive notice to plaintiff.
see Vasko v. United States, 112 Fed. cl. a|220-21. Plaintiffs conclusion in her Motion
for Reconsideration, that the attorney's affidavit signature on the 19g3 deed "is beyond
any remnants of legality," does not present any basis for a relief from judgment.
Plaintiff's second contention is that her presence on the property was hostile.
Plaintiff states in her Motion for Reconsideration that the "record tiile holders, the
McKinneys, in no way ever gave Plaintiff and her family permission to reside on the
land." Additionally, plaintiff asserts, "in Plaintiffs Bankruptcy petition the Bankruptcy
court found Plaintiff/Debtor to have no attachable interest in the property, which would
appear to say that Plaintiff had never purchased the property, which would appear to
say that Plaintiff was squatting on the Property, pursuant to adverse possession.,,2

does so in order to highlight discrepancies between this unrelated affidavit and the filed
and re-filed closing attorney's affidavit for the mortgage deed between the McKrnneys
and American National Financial, Inc., in 19g2 and 19g3. she argues that the
attorney's affidavit attached in her supplement "follows Georgia legal protocol.
comparatively, the slip shod filing and re-filing of the McNeilllvLrinney Aitorney's
Affidavit is incongruous with the obvious knowledge of this experienced expert, throwing
a pall on the McNeil/McKinny [sic] affidavit of this case." (internal citation omitted). Thii
argument, however, fails to alter the court's determination that the 1992 deed itself
provided constructive notice to plaintifi, and that, regardless, the attorney's affidavit was
in compliance with Georgia law after the 1g93 re-filing. see Vasko v. United states,
112 Fed. Cl. at220-21.
2

Plaintilt directs the court to "ln re: carol Ann Vasko aka carol Ann simpson, 04-919g4
U.s. Bankruptcy court Northern District of Georgia, Aflanta Division." During plaintiffs

bankruptcy petition and proceeding, she initiated an adversarial proceeding Jgainst the
Bank of Oklahoma Mortgage Company, Mr. McKinney, Mr. Brown, and the Ford Motor
Credit Company. SeeAdversarial Proceeding No.04-09178, U.S. Bankr. Ct. (N.D. Ga.
oct. 4, 2004). This proceeding was dismissed at plaintiff's request on June 30. 2oos. lt

Plaintiff in her September 3, 2013 Filing also repeats that she considered herself the

true owner when she purchased it from William A. Brown, Jr., that Mr. Brown's

permissiveness had no impact on hostility, and that when she found out that she was
not the owner she "was quite vocal in her displeasure." Plaintiff contended in her July 8,
2013 Motion to Strike that she believed she was the purchaser of the land. and that
permission from Mr. Brown "is a nullity." She also stated that after finding out about her
situation she reached out to the Federal Bureau of Investigation, county tax collector,
and other parties to voice her displeasure and concerns. Despite having raised this
issue before the court's August 19,2013 opinion was issued, since prescription did not
run on the property as the prior deeds provided notice to plaintiff, the court does not
need to reach the question of hostility of possession. All her allegedly new facts or
arguments, however, were presented to the court by plaintiff prior to issuance of the
court's August 19, 2013 opinion, and were considered by the court.
Plaintiff's third contention is that there was "fraud" in the original transaction
between the McKinneys and American National Financial, Inc., separate from the
forgery argument raised above, and that this fraud invalidated the prior recorded
mortgages. Plaintiff, however, also raised this argument previously, stating that:
"Plaintiff put Defendant on notice [ofl the breaches of VA rules
[sic], that Mckinney
never lived nor intended to live at the property; that the property was purchased for
McKinney's daughter, Debra McKinney carter." The court considered,' rejected, and
addressed, plaintiffs unsupported allegation of fraud in its August 19, 2013 opinion.
Plaintiff in her september 3, 2013 Filing presents no new facts. she merely refers to
her "prior pleadings," and claims that the VA and Bank of Oklahoma ,,did nothing,, about
"the loan in limbo with all kinds of irregularities and illegalities afloat." Furtherm6re, sne
states that: "[t]here are so many irregularities there is question if any part of this real
estate transfer can be accepted as legal." Plaintiffs Motion for Reconsideration is more
l!99ifi1 but still merely parrots her prior pleading. Moreover, as plaintiff conceoes,
'Plaintiff has stated repeatedly that McKinney's mortgage was acquiied through fraud.
McKinneys never intended [sic] to reside on the prop-erty and purchased it for their
daughter, in violation of VA rules." No new facts have been presented by plaintiff that
create any plausible reason to believe that fraud occurred as the plaintiff describes.

_ separate from plaintiffs takings arguments discussed above, in her Motion for
Reconsideration plaintiff once

again alleges she had an oral contract with the defendant
and disputes the court's holding, albeit, without presenting any new facts or arguments.
First, she asserts that although the VA's contract attorney in the eviction was riot a paid
urS government employee, "he was entrusted with duties to arrange for the disposition
of the Property." As made clear the court's August 19,2013 opinion, plaintiff bore the
risk of ensuring that she was contracting with someone who had authority to bind the
government. see Vasko v. United states , 112 Fed. cl. at 216-17. As noted in the
court's August 19, 2013 opinion, the Federal circuit has held that even ,,apparent
authority of the government's agent
. is not sufficient; an agent must have actual
authority to bind the government." winter v. cath-dr/Balti Jolnt Venture, 497 F.3d 1339,

.

does not appear, however, that the bankruptcy court came to the conclusion plaintifi
alleges.

1344 (Fed. Cir.), reh'q and reh'q en banc denied (Fed. Cn.2007). As explained in the
court's August 19,2013 opinion, at no point has plaintiff "demonstrated that she even
spoke with, much less entered into an agreement with, any individual authorized to
contract on behalf of the government." Vasko v. United States , 112 Fed. Cl. at217.
CONCLUSION

No mistake, inadvertence, or excusable neglect, no newly discovered evidence
that could not reasonably have been discovered before a new trial, and no fraud by the
defendant, or any other justifiable reason has been presented that warrants relief under
RCFC 60(b). Plaintiffs Motion for Reconsideration of the court,s August 19, 2013
decision, dismissing plaintiff's case, is DENIED.
IT IS SO ORDERED.

( rK^'4,2J

MARIAN BLANK HORN

Judge