Filed: Dec. 08, 2009
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1397 MABEL S. JONES, individually and as the next best friend and personal representative of the estate of Prince Carmen Jones, Jr., Plaintiff - Appellant, and CANDACE JACKSON, Intervenor – Plaintiff, v. PRINCE GEORGE’S COUNTY, MARYLAND; CARLTON B. JONES, Officer, Prince George’s County Police Department in both his official and individual capacities, Defendants – Appellees, and ALEXANDRE BAILEY; JOHN S. FARRELL, Defendants
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1397 MABEL S. JONES, individually and as the next best friend and personal representative of the estate of Prince Carmen Jones, Jr., Plaintiff - Appellant, and CANDACE JACKSON, Intervenor – Plaintiff, v. PRINCE GEORGE’S COUNTY, MARYLAND; CARLTON B. JONES, Officer, Prince George’s County Police Department in both his official and individual capacities, Defendants – Appellees, and ALEXANDRE BAILEY; JOHN S. FARRELL, Defendants,..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1397
MABEL S. JONES, individually and as the next best friend and
personal representative of the estate of Prince Carmen
Jones, Jr.,
Plaintiff - Appellant,
and
CANDACE JACKSON,
Intervenor – Plaintiff,
v.
PRINCE GEORGE’S COUNTY, MARYLAND; CARLTON B. JONES, Officer,
Prince George’s County Police Department in both his
official and individual capacities,
Defendants – Appellees,
and
ALEXANDRE BAILEY; JOHN S. FARRELL,
Defendants,
v.
INOVA HEALTH SYSTEM FOUNDATION; ROBERT F. HORAN; J. THOMAS
MANGER; PRINCE CARMEN JONES, SR.,
Movants.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Alexander Williams, Jr., District
Judge. (8:04-cv-03044-AW)
Argued: September 25, 2009 Decided: December 8, 2009
Before WILKINSON and DUNCAN, Circuit Judges, and Damon J. KEITH,
Senior Circuit Judge of the United States Court of Appeals for
the Sixth Circuit, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Gregory L. Lattimer, LAW OFFICES OF GREGORY L. LATTIMER,
Washington, D.C., for Appellant. Jay Creech, Shady Side,
Maryland, for Appellees. ON BRIEF: Ted Williams, Washington,
D.C., for Appellant. Timothy W. Fitzmaurice, Upper Marlboro,
Maryland, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
This appeal arises from a district court order granting a
defendant’s motion for summary judgment in an action brought
pursuant to 42 U.S.C. § 1983; the Maryland Survival Act, Md.
Code Ann., Est. & Trusts § 7-401(y); and the Virginia Wrongful
Death Act, Va. Code Ann. § 8.01-50. The district court held
that under state law, Appellant Mabel S. Jones (“Appellant”), as
personal representative of her son’s estate, is barred from
recovering under the Maryland Survival Act when the decedent’s
father and the guardian of the decedent’s daughter settled a
claim under the Virginia Wrongful Death Act for the same
incident. For the reasons that follow, we affirm.
I.
On September 1, 2000, at around 1:00 a.m., Prince Carmen
Jones, Jr. (“Decedent”) was driving north on Georgia Avenue in
Washington, D.C. Two members of the Prince George’s County
Police Department, Corporal Carlton B. Jones and Sergeant
Alexandre Bailey, followed Decedent’s vehicle because they
believed it belonged to Darryl Gilchrest, a suspect in a
criminal investigation. They followed Decedent from D.C. into
Prince George’s County, Maryland; back through D.C.; and then
into Fairfax County, Virginia. Decedent resided in Maryland but
3
was driving to Virginia to visit his fiancée Candace Jackson.
After Decedent pulled into a driveway, Corporal Jones pulled up
behind him and exited his vehicle. When Decedent attempted to
flee, Corporal Jones fired sixteen shots at him. Decedent was
hit by five bullets in the back and one in the arm. He died a
short time later in Virginia. 1
On December 5, 2000, Appellant brought a seven-count
complaint against Corporal Jones, Sergeant Bailey, Prince
George’s County (“County”), and Chief of Police John S. Farrell
(collectively, “Defendants”) in the United States District Court
for the District of Columbia. The complaint alleged a
constitutional violation under 42 U.S.C. § 1983, and various
tort claims under the Maryland Survival Act and the Virginia
Wrongful Death Act, including assault and battery, negligent
training and supervision, and intentional and negligent
infliction of emotional distress. On March 22, 2004, the case
was transferred to the United States District Court for the
District of Maryland. A year later, on April 28, 2005, the
district court granted summary judgment to Chief Farrell,
1
The details of the events leading up to the Decedent’s
death are set forth in greater detail in Jones v. Prince
George’s County (“Jones I”), 835 A.2d 632, 635 (Md. 2003) and
Jones v. Jones (“Jones II”),
915 A.2d 471, 474-75 (Md. Ct. Spec.
App. 2007).
4
Sergeant Bailey, and the County. Only Appellant’s claims
against Corporal Jones remained.
While Appellant’s lawsuit was pending, Prince Carmen Jones
Sr. (“Jones Sr.”), the Decedent’s father, and Candace Jackson,
as guardian of Decedent’s daughter Nina Jones (“Nina”), brought
a Maryland Wrongful Death Act, Md. Code Ann., Cts. & Jud. Proc.
§ 3-904, action in the Circuit Court for Prince George’s County
against Defendants. Soon after, the court allowed Appellant to
intervene under Maryland Rule 15-1001. 2 On January 9, 2006, a
2
Thereafter, Appellant filed a motion for summary judgment,
asserting that, because the death occurred in Virginia, the
Virginia Wrongful Death Act controlled and, under that act, the
personal representative is the only person with standing to
bring suit. The circuit court granted summary judgment on that
ground and dismissed the entire case. Jackson and Jones Sr.
noted an appeal and the court of appeals issued a writ of
certiorari. The court held, inter alia, that the plain language
of the Maryland Wrongful Death Act provides that, when the
wrongful act occurs in another state, the substantive law of
that state applies; the circuit court therefore erred in ruling
that the place determines as a matter of substance which state’s
wrongful death statute applies. Jones I, 837 A.2d 638-39. The
court observed that the allegations against the defendants
included some wrongful acts in Maryland and others in Virginia.
Id. at 639.
The court further held that the issue of who has standing
to file a wrongful death action in Maryland is procedural, not
substantive, and thus is governed by the law of the forum state,
Maryland.
Id. at 640. In addition, the court ruled that,
because neither the Maryland Wrongful Death Act nor the Maryland
Rules specify who may properly file a wrongful death action in
Maryland when the wrongful acts alleged to have caused the death
occurred, at least in part, outside of Maryland, common law
standing principles applied.
Id. at 644. Under those
(Continued)
5
jury found liability and awarded damages to the plaintiffs.
Jackson was awarded $2.5 million, Appellant was awarded $1
million, and Jones Sr. was awarded $200,000. 3 Thereafter,
Corporal Jones and the County moved for judgment notwithstanding
the verdict, for a new trial, or to revise the judgment. The
trial court granted the motion in part, striking the judgment in
favor of Appellant and Jones Sr. because neither party was a
permissible beneficiary under the Virginia Wrongful Death Act.
Appellant and Jones Sr. appealed the trial court’s
decision. Before the appeal came to fruition, however,
Defendants settled with Jones Sr. and Jackson. 4 Pursuant to that
principles, the court found that the plaintiffs and intervenor
were aggrieved people with standing to sue. Id. Accordingly,
the court reversed the grant of summary judgment and remanded
the case for further proceedings.
Id. at 646.
3
Soon after the jury trial, on January 20, 2006, Appellant
voluntarily dismissed her wrongful death claim in the Maryland
district court matter, explaining:
Nina Jones is the exclusive beneficiary in plaintiff’s
Virginia Wrongful Death Action and she is only
entitled to one recovery as a matter of law.
. . . Because a wrongful death claim has been
fully adjudicated on her behalf, it would be contrary
to law and inefficient to continue parallel litigation
on this issue . . . .
J.A. 32.
4
Nevertheless, the Court of Special Appeals of Maryland
issued an opinion. Jones II, 915 A.2d 471. In that opinion,
(Continued)
6
settlement, which the Circuit Court for Prince George’s County
approved on September 27, 2006, Jones Sr. would receive
$200,000, and Jackson would receive $2.3 million for Nina’s
benefit.
Once the settlement was approved, on September 7, 2007,
Corporal Jones filed a motion for summary judgment in
Appellant’s earlier Maryland lawsuit. Corporal Jones argued
that under Virginia law, Appellant was barred from recovering
under a survival statute when the appropriate beneficiary had
already recovered under the Virginia Wrongful Death Act. By
contrast, Appellant argued that her son’s death gave rise to two
separate and distinct claims--one under the Virginia Wrongful
Death Act and one under the Maryland Survival Act--that serve
the court affirmed the trial court’s judgment, holding that it
properly struck the verdicts in favor of Jones Sr. and
Appellant. Specifically, the court held that under the Maryland
Wrongful Death Act, when the wrongful act that caused the death
was committed in another state, the substantive law of that
other state applies. Id. at 479. Finding the wrongful act by
Corporal Jones was committed in Virginia, the court held the
Virginia Wrongful Death Act applied.
Id. at 478-79. The court
noted that the right to recover damages for wrongful death,
unlike the issue of standing to file a wrongful death action
addressed in Jones I, is a matter of substantive law, not
procedural law. The Virginia Wrongful Death Act thus determined
the permissible beneficiaries.
Id. Under the Virginia Wrongful
Death Act, a parent of an adult child decedent is not a
permissible beneficiary if the adult child decedent is survived
by a minor child.
Id. at 479. Accordingly, the court found
that Appellant did not have a substantive right of recovery for
wrongful death under Virginia law.
Id.
7
different purposes and accomplish entirely different results.
In essence, she said the disposition of one claim could not bar
the other.
On April 2, 2008, the district court granted Corporal
Jones’s motion for summary judgment, reasoning that “Virginia’s
wrongful death statute, and the body of case law surrounding it,
explicitly and unequivocally establish that there can only be
one recovery for the same injury.” J.A. 72 (emphasis omitted).
That same day, Appellant appealed from this order.
II.
We first determine which matters are properly before us in
this appeal. Appellant’s notice of appeal explicitly states
that Appellant is appealing “to the United States Court of
Appeals for the Fourth Circuit from the Court’s Order granting
Defendants’ Motion for Summary Judgment entered on the 2nd day of
April, 2008.” J.A. 139 (emphasis added). In her brief and at
oral argument, however, Appellant also challenged the district
court’s April 28, 2005, order granting summary judgment to all
defendants but Corporal Jones. 5 Specifically, Appellant argues
5
The April 28, 2005, order has been appealed by the parties
once before. However, those appeals were dismissed before the
issues reached this court. On May 16, 2005, Corporal Jones
filed a notice of appeal challenging the district court’s ruling
(Continued)
8
that no basis existed for dismissing her § 1983 claims against
the County.
Federal Rule of Appellate Procedure 3(c)(1)(B) provides
that the notice of appeal must “designate the judgment, order,
or part thereof being appealed.” Generally, the requirements of
Rule 3 are liberally construed, see Torres v. Oakland Scavenger
Co., 487 U.S. 312, 316 (1988), and an appeal from a final
judgment brings into question all previous rulings leading to
the judgment, see McLaurin v. Fischer,
768 F.2d 98, 101 (6th
Cir. 1985). That said, “[s]ubjecting Rule 3 to a liberal
construction does not . . . excuse compliance with the rule.”
Nolan v. U.S. Dep’t of Justice,
973 F.2d 843, 846 (10th Cir.
1992). Because the dictates of Rule 3 are jurisdictional, each
requirement must be satisfied as a prerequisite to appellate
review. Smith v. Barry,
502 U.S. 244, 248 (1992). Where the
notice of appeal designates specific rulings being appealed,
on the issue of qualified immunity. On May 31, 2005, Appellant
filed a cross-appeal, challenging the district court’s dismissal
of her claims against the County. On September 2, 2005, this
court granted Appellant’s motion to dismiss Corporal Jones’
appeal, and pursuant to Appellant’s motion to withdraw her
appeal to permit the case to move forward in district court,
Appellant’s cross-appeal was also dismissed. In addition, these
appeals were not interlocutory appeals, as Appellant argued,
because the April 28th, 2005, order was not of a nature to be
“‘effectively unreviewable on appeal from final judgment.’”
Lauro Lines S.R.V. v. Chasser,
490 U.S. 495, 498 (1989) (quoting
Richardson-Merrell Inc. v. Koller,
472 U.S. 424, 431 (1985)).
9
this court has no jurisdiction to review other judgments or
issues which are not expressly referenced or even impliedly
intended for appeal. See Foster v. Tandy Corp., No. 86-1726,
1987 WL 46367, at *8 (4th Cir. Sept. 16, 1987) (entry of
directed verdict not appealed when notice of appeal addressed
only the grant of a judgment notwithstanding the verdict);
Gunther v. E.I. Du Pont De Nemours & Co.,
255 F.2d 710, 717 (4th
Cir. 1958) (“[S]ince the jurisdiction of the appellate court is
determined by the timeliness and specific terms of the notice,
it cannot be modified to cover a judgment not included by any
reasonable interpretation . . . .”).
Here, the notice of appeal explicitly referenced the
district court’s April 2, 2008, order but failed to designate
the April 28, 2005, order. Appellant argues her intent to
appeal that order was obvious because she named the County as an
appellee. “While the intent to appeal may be obvious from the
procedural history of a case or from the appeal information form
completed by an appellant,” no such intent is obvious here.
Parkhill v. Minn. Mut. Life Ins. Co., 286 F.3d 1051, 1059 (8th
Cir. 2002). Appellant’s appeal information form does not
mention the April 28, 2005, order, and the issues resolved in
that order were not revisited or addressed in the April 2, 2008,
order. The County easily could have assumed that Appellant
10
would not appeal the April 28, 2005, order when she failed to
include that order in her notice of appeal and in the appeal
information form. Moreover, the April 28, 2005, order had
already been appealed once before, and nothing in the record
indicates Appellant intended to appeal that order again. We
thus lack jurisdiction to review the district court’s April 28,
2005, order, and turn our attention to the April 2, 2008, order,
which is all that is before us for review.
III.
Having determined our scope of review, we now turn to
Appellant’s arguments regarding the April 2, 2008, order. As
noted above, in that order, the district court dismissed
Appellant’s remaining claims against Corporal Jones, finding
Virginia law barred Appellant from recovering under the Maryland
Survival Act. On appeal, Appellant challenges the district
court’s application of Virginia law to her Maryland Survival Act
claim. First, she avers that Maryland’s survival statute
differs from the Virginia Wrongful Death Act because it is
conceptually designed to redress the interests of the decedent’s
estate, whereas the Virginia Wrongful Death Act is intended to
redress the interests of designated beneficiaries. Second, she
contends that the present case makes out a sufficiently clear
11
and strong public policy in favor of allowing her Maryland
Survival Act claim to proceed. Finally, she posits that
Corporal Jones waived his right to assert that Virginia law bars
the present action by failing to timely assert such an argument
as an affirmative defense in his answer to her complaint. These
arguments are discussed separately below.
A.
We first consider the argument that Virginia and Maryland
law serve entirely different functions, such that Maryland
should not apply Virginia’s law to this case. Although we are
sympathetic to Appellant’s argument, we find that her argument
does not fairly reflect Maryland’s own approach to choice of law
analysis. In Maryland, courts adhere to the traditional lex
loci delicti rule for torts, which provides that the state in
which the harm occurred is the state that provides the
substantive cause of action to the injured party. Philip Morris
Inc. v. Angeletti, 752 A.2d 200, 230 (Md. 2000). Thus, even if
Maryland would have an interest in applying its own substantive
law, Maryland’s choice of law principles compel the application
of Virginia law in this case. Klaxon Co. v. Stentor Elec. Mfg.
Co.,
313 U.S. 487, 496 (1941). Recognizing that Decedent’s
12
shooting and death occurred in Virginia, the district court
correctly concluded that Virginia’s substantive law controls.
Virginia recognizes a survival action for injuries
sustained by the victim. See Va. Code Ann. § 8.01-25. However,
unlike the law of Maryland, the law of Virginia dictates that a
survival action brought in Virginia converts to a wrongful death
action if the victim dies from that particular injury or
wrongful act. See Va. Code Ann. §§ 8.01-25, 8.01-56; see also
El-Meswari v. Wash. Gas Light Co., 785 F.2d 483, 490 (4th Cir.
1986) (“[Section] 8.01-25 defers to the wrongful death statute
as the exclusive statement of the grievances that Virginia will
recognize when a tort victim dies of her injuries.”); Wright v.
Eli Lilly and Co., 65 Va. Cir. 485, 495 (Va. Cir. Ct. 2004)
(“[I]f the [decedent’s] death is due to the same injury which is
the subject of a pending personal injury action, the pending
action is converted to one for wrongful death.”). Consequently,
under Virginia law, “a person may not recover for the same
injury under the survival statute and the wrongful death
statute” if that injury or wrongful act resulted in the victim’s
death. Hendrix v. Daugherty,
457 S.E.2d 71, 75 (Va. 1995); see
also Va. Code Ann. § 8.01-56 (explaining there can “be but one
recovery for the same injury”).
13
Here, because Nina has already recovered under the Virginia
Wrongful Death Act in the state proceeding, Appellant cannot
recover under the Maryland Survival Act. 6 Under Virginia law,
negligent conduct by one person causing the death of another
gives rise to only one cause of action. This cause of action is
provided in lieu of any other form of recovery against the
wrongdoer based on the same wrongfully caused death. In
Virginia, therefore, a judgment under the Virginia Wrongful
Death Act is conclusive between the parties as to all rights
arising from the operative facts. See Semler v. Psychiatric
Inst. of Wash. D.C., Inc., 575 F.2d 922, 931 (D.C. Cir. 1978).
This must also be the effect of Nina’s recovery in the Circuit
6
Appellant argues that Nina cannot be said to have
recovered under the Virginia Wrongful Death Act because the
state proceeding involved a Maryland wrongful death claim.
Admittedly, Nina and Jones Sr. filed a claim for wrongful death
in Maryland, and the Maryland Supreme Court in Jones I
determined that “the general Maryland choice of law principles
concerning the right to bring an action disclose that, for the
purposes of the wrongful death statute, this is a procedural
issue governed by the law of [Maryland].” 835 A.2d at 640.
Yet, by the same token, both Jones I and Jones II recognized
that Virginia’s substantive law applied to conduct that occurred
in Virginia, see Jones
I, 835 A.2d at 639; Jones
II, 915 A.2d at
479, and the claims ultimately presented to the jury were all
based upon conduct that occurred in Virginia exclusively, see
Jones
II, 915 A.2d at 475. Thus, although procedurally the
matter was brought under Maryland law, the “legal right to
recover damages for the wrongful death of [the Decedent] [was]
controlled by the Virginia Act.”
Id. at 479.
14
Court of Prince George’s County. 7 We therefore find no error in
the district court’s conclusion that Virginia law bars Appellant
from proceeding under the Maryland Survival Act. 8
B.
We turn next to Appellant’s contention that this case
presents a sufficiently clear and strong public policy to
disregard the lex loci delicti doctrine in favor of allowing her
7
Appellant insists that Nina did not recover damages
pursuant to a court judgment but instead chose to settle her
claims, and thus cannot be said to have recovered under the
Virginia Wrongful Death Act. Nina obtained a settlement because
she had a wrongful death claim, and as Jones II recognized, her
legal right to recover was controlled by the Virginia Wrongful
Death Act. 915 A.2d at 479. The parties reached their
settlement knowing Virginia’s substantive law controlled, and,
in that settlement, Nina agreed to “release any and all claims .
. . [she was] entitled to bring on her own behalf,” including
her wrongful death claim. J.A. 45. Accordingly, and contrary
to Appellant’s assertions, Nina recovered under Virginia’s
wrongful death statute in the state proceeding.
8
In reaching this conclusion, we do not decide whether the
abatement of Appellant’s § 1983 claims based on Virginia state
law is permissible--that is, whether Officer Jones’s conduct
constitutes a clear deprivation of federal rights. We recognize
that after Robertson v. Wegmann, 436 U.S. 584, 594 (1978), and
Carlson v. Green,
446 U.S. 14, 24 (1980), it would appear that a
federal rule of survival supersedes any state law requiring
abatement when the acts of § 1983 defendants caused the death of
the injured party. See, e.g., McFadden v. Sanchez,
710 F.2d
907, 911 (2d Cir. 1983); O’Connor v. Several Unknown Corr.
Officers,
523 F. Supp. 1345, 1348 (E.D. Va. 1981). We do not
reach this issue here, however, because Appellant failed to
raise it in her opening brief, and it is therefore waived. See,
e.g., Rowland v. Am. Gen. Fin., Inc.,
340 F.3d 187, 191 n.1 (4th
Cir. 2003).
15
Maryland Survival Act claim to proceed. It is true that “where
an overriding issue of the forum’s public policy is at stake,
such public policy may provide a sufficient basis for overruling
the principle of lex loci delicti and applying forum law to the
case.” Black v. Leatherwood Motor Coach Corp., 606 A.2d 295,
303 (Md. Ct. Spec. App. 1992). Here, however, Appellant has not
shown that the right to recover under both wrongful death and
survival statutes is a matter of important public policy for
Maryland, and without guidance from the Maryland courts, we will
not presume such a policy exists. Given that no case law or
statute has been shown to support the importance of this public
policy, and given the few limited circumstances Maryland courts
have been willing to depart from the lex loci delicti doctrine
for public policy purposes, see, e.g., Hauch v. Connor,
453 A.2d
1207, 1214 (Md. 1983), Powell v. Erb,
709 A.2d 1294, 1298 (Md.
1998), and Lab. Corp. of Am. v. Hood,
911 A.2d 841, 849-50 (Md.
2006), 9 we find the district court did not err in adhering to the
lex loci delicti doctrine.
9
Appellant’s reliance on Hauch, Powell and Hood is
misplaced. Those are state law cases in which Maryland courts
found particular matters of state policy, rooted in statute and
case law, to present public policy sufficiently powerful to
overwhelm lex loci delicti and require the application of local
law. In the absence of any explanation why Maryland would find
such a similarly powerful interest here, we will not presume the
right to make such a determination on its behalf.
16
C.
Finally, we turn our attention to Appellant’s argument that
Corporal Jones waived his right to assert the Virginia statutory
bar to double recovery because he did not assert this
affirmative defense in his answer to the complaint. See Fed. R.
Civ. P. 8(c). We disagree. As Corporal Jones notes, there was
no basis for raising Virginia’s statutory bar to double recovery
until Nina recovered pursuant to the Virginia Wrongful Death Act
in September 2006. See Ahmed v. Nat’l R.R. Passenger Corp.
(Amtrak), No. 94-2438, 1995 WL 378599, at *3 (4th Cir. June 27,
1995). Indeed, once the settlement in the state proceeding was
approved, Corporal Jones immediately notified the trial court of
the issue at a telephone conference held on October 31, 2006.
Appellant thus cannot show Corporal Jones’s delay was
accompanied by actual prejudice, bad faith or futility. See,
e.g., Defender Indus., Inc. v. Nw. Mut. Life Ins. Co.,
938 F.2d
502, 508 (4th Cir. 1991) (mere delay, when unaccompanied by
actual prejudice, bad faith, or futility, does not justify
denial of leave to amend answer to assert affirmative defense),
cert. denied,
113 S. Ct. 3038 (1993).
17
IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
18
