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CHARLESTON, SC: TECinSC loses again in Federal Court

CHARLESTON, SC: TECinSC loses again in Federal Court
Judge Houck steps on Bishop vonRosenberg's tired arguments

By Mary Ann Mueller
VOL Special Correspondent
www.virtueonline.org
January 16, 2014

United States District Court Judge C. Weston Houck minces no words in his latest ruling against The Episcopal Church in South Carolina (TECinSC) nor is he about to be fooled by The Episcopal Church's legal banter.

"This matter is before the Court on the motion of the plaintiff, the Right Reverend Charles G. vonRosenberg ("Bishop vonRosenberg"), pursuant to Federal Rule of Civil Procedure 59(e), for reconsideration of the Court's August 23, 2013 Order, which granted the motion of the defendant the Right Reverend Mark J. Lawrence ("Bishop Lawrence"), to abstain, thereby dismiss in the case without prejudice. For the reasons discussed below, Bishop vonRosenberg's motion for reconsideration (ECF No. 33) is denied," Judge Houck succinctly explained in the first paragraph of his January 14 ruling.

Following seven pages of detailed background and reasoning, the United States District Court judge ends with: "For the foregoing reasons, Bishop vonRosenberg's motion for reconsideration (ECF No. 33) is denied. AND IT IS SO ORDERED."

Judge Houck is not a man to be trifled with. Twice the judge has dismissed Bishop vonRosenberg's attempts to get the federal court system to do his bidding in wrestling the unique identity and marks of the Episcopal Diocese of South Carolina away from Bishop Lawrence, without prejudice, meaning that should a change in the status of the case or a change in law warrant it, Bishop vonRosenberg can seek to reinstate his case in federal court.

Judge Houck originally rejected TECinSC's motion for a preliminary injunction on August 23, 2013 without prejudice. On Sept. 16, 2013, falling within the 28 day window to file a Motion to Alter or Amend a Judgment, Bishop vonRosenberg's legal counsel and chancellor Thomas Tisdale was seeking a Motion for Reconsideration complete with a Memorandum in Support of the Motion, claiming that under Federal Rule of Civil Procedure 59(e) the federal court made two fundamental errors in its earlier August ruling.

In a 24-page pleading, TECinSC's attorneys claimed that Judge Houck's court ruling was in error because it is their understanding that the legal rights Bishop vonRosenberg is seeking in the federal action are distinct from those represented by The Episcopal Church and TECinSC in Judge Diane Goodstein's South Carolina Circuit Courtroom, and that Bishop vonRosenberg is not a party, nor a de facto participant, in the local South Carolina court case.

"... this action and the state-court action are not parallel under controlling decisions of the Fourth Circuit," Tisdale's Sept. 16 Motion for Reconsideration argues. "Bishop vonRosenberg is not a party to the state-court action. Nor is Bishop Lawrence a party to that action-a fact that the state-court plaintiffs have attempted to perpetuate by opposing the state-court defendants' request to add him as a party..."

In his newest ruling Judge Houck was quick to note in his explanation of Federal Rule of Civil Procedure 59(e) that "the Rule does not provide a standard under which a district court may grant such a motion."

The judge further iterated that "the Fourth Circuit Court has articulated 'three grounds for amending an earlier judgment. Those being (1) to accommodate an intervening change in controlling law; (2) to account for new evidence not available at trial; or (3) to correct a clear error of law or prevent manifest injustice.'"

The federal judge did not feel that any of the Fourth Circuit Court's triple grounds for altering or amending a judgment were met by TECinSC's latest legal arguments and was simply a case of rehashing previous points of view.

"A party's mere disagreement with the Court's ruling does not warrant a Rule 59(e) motion," Judge Houck emphatically stated, "and such motion should not be used to 'rehash' arguments previously presented or to submit evidence which should have been previously submitted.

"In the present case, Bishop vonRosenberg's motion is based on the third ground articulated in Pacific Insurance -- the motion was filed to correct a clear error in law," Judge Houck explained. "The Fourth Circuit has stated that, to justify reconsideration on the basis of manifest error, the prior decision cannon be 'just maybe or probably wrong; it must ... strike us as wrong with the force of a five-week-old, unrefrigerated dead fish.' ... In other words, the decision must be 'dead wrong.'"

However, Bishop vonRosenberg argues that the federal court is "dead wrong" in its earlier pronouncement. Judge Houck takes issue to that opinion with the force of a new ruling supporting his original ruling.

Judge Houck has an impressive legal and public service pedigree. A native South Carolinian, he received his Bachelor of Laws (LL.B) from the University of South Carolina Law Center. (The LL.B. is now an obsolete university degree.) Following military service Houck set up a 20-year private law practice in his hometown of Florence. He was also served as a South Carolina state representative and chairman of the Florence City-County Building Commission.

In 1979 President Jimmy Carter tapped the Florence attorney as a federal judge on the United States District Court for the District of South Carolina. The South Caronia jurist has also served seven years as the chief judge for the South Carolina district and at the age of 70 with almost 25 years on the federal bench he assumed senior status which he currently enjoys.

Judge Houck has little patience with legal hairsplitting, slight-of-hand, trickery or whining. He writes: "...Bishop vonRosenberg is using the motion 'to ask the Court to rethink what the Court had already though through -- rightly or wrongly.' As such, Bishop vonRosenberg's motion to reconsider argues matters outside the proper scope of the motion, and, therefore, is denied."

Judge Houck is careful to explain that in his earlier ruling the Court had "meticulously explained the law and its reasoning ...." in reaching its decision.

In the earlier August Order Judge Houck ruled: "Without the Court's declaration that Bishop Lawrence's service mark use violates the Lanham Act, the remaining relief is unwarranted as it necessarily relies on that declaration."

Revisiting that prior ruling the federal judge declared: "The Court declines to stray from its holding in the Order because the Court maintains that Bishop vonRosenberg's non-declaratory claims are not independent of his declaratory judgment request."

Bishop vonRosenberg has long claimed that Bishop Lawrence is in violation of the federal Lanham Act that prohibits trademark infringement, trademark dilution and false advertising.

Bishop Lawrence has been in possession of the name and trademarks of the Episcopal Diocese of South Carolina since his enthronement as the 14th Bishop of South Carolina in January 2008. By order of the South Carolina Circuit Court, he continues to be in possessing of them following the realignment of the Palmetto State diocese. The Diocese of South Carolina has been in existence since 1785, which precedes the creation of The Episcopal Church by four years.

In August Judge Houck bounced TECinSC's case back to Judge Goodstein's First Judicial Circuit Court for an initial determination; however it seems that Bishop vonRosenberg is unwilling to accept Judge Houck's ruling without a fight, hence the federal Motion for Reconsideration.

"Again, it appears that Bishop vonRosenberg is using the motion to express his disagreement with the Court's ruling and to 'rehash' previously presented arguments," Judge Houck said on the final page of his new ruling. "As stated above, 'mere disagreement ... does not warrant a Rule 59(e) motion.' As such, Bishop vonRosenberg's motion is improper and reconsideration is not justified."

Even as Judge Houck was again slapping down TECinSC's latest motion in his federal courtroom, Tisdale was hot on the heels of filing another motion in South Carolina Court of Appeals to overturn Judge Goodstein's denial of reconsideration of her earlier rulings in South Carolina civil case number 2013-CP-18-00013

"The Episcopal Church in South Carolina appeals the order of the Honorable Diane S. Goodstein entered December 31, 2013, denying a motion for reconsideration of the Court's order entered November 18, 2013," states the caption page of a 21-page state appellate court appeal which was sent via Fed Ex to Appellate Court Clerk Jenny Kitchings in Columbia, South Carolina.

A Jan. 13, 2014 news release on TECinSC website states: "The Episcopal Church in South Carolina has asked the South Carolina Court of Appeals to overturn a judge's ruling and grant the continuing diocese access to vital documents from the attorney who represented it before the schism, and who now represents the breakaway group led by Bishop Mark Lawrence."

Apparently, the filed appeal has the effect of staying the case that is currently before Circuit Judge Diane S. Goodstein in her Dorchester County, South Carolina courtroom.

"At issue is correspondence between Beaufort attorney C. Alan Runyan and Bishop Lawrence prior to November 17, 2012 that relates to the Diocese of South Carolina and The Episcopal Church," the statement continues. Mr. Runyan was legal counsel for the diocese prior to that date, which is when leaders of the breakaway group met and purported to 'withdraw' from The Episcopal Church. Bishop Lawrence is no longer a bishop in TEC, and Mr. Runyan now represents the breakaway group, which is suing TEC and TECSC in state court seeking control of the diocese.

"Prior to the withdrawal, Mr. Runyan represented the then-unified diocese, which included both members of TECinSC and the breakaway diocese. Thus, he jointly represented parties on both sides of the case, and TECinSC should be entitled to the documents," the statement adds.

TECinSC claims that Judge Goodstein's Nov. 18 denial of its motion shows favoritism to the Diocese of South Carolina's argument that TECinSC did not exist until January 26, 2013.

On that dateThe Episcopal Church in South Carolina was formed during a special convention called by Episcopal Presiding Bishop Katharine Jefferts Schori and Bishop vonRosenberg was installed as the first provisional bishop.

Diocese of South Carolina Canon to the Ordinary Jim Lewis describes TECinSC's continued legal wrangling as time-consuming legal harassment coupled with expensive litigation.

TECinSC has found that it now has a ready source of funding to continue to mount a legal battle in whatever courtroom its army of attorneys can find -- state, federal and now appellate. Tisdale's Notice of Appeal lists more than 50 attorneys who are involved on both sides of the lengthy litigation process in the widening courtroom hopping dance.

Last week, yet another judge, US District Court Judge Patrick Duffy ruled that the Church Insurance Company of Vermont, under its commercial liability coverage policy, must payout upwards to $1 million thus providing a hefty legal defense fund for TECinSC's continued battle in Judge Goodstein's courtroom.

The federal ruling came about because the judge determined that actual damages are in the form of attorney fees, and that South Carolina statutes provide for monetary damages and attorney fees for trademark infringement.

"We are delighted with this ruling and grateful that our insurance policy will be providing us with the necessary resources to continue to defend our diocese from this suit that was brought against it," TECinSC's Director of Communications Holly Behre is quoted as saying.

On Wednesday (Jan. 15) the Episcopal Diocese of South Carolina filed a motion with the South Carolina appellate court to dismiss the appeal that TECinSC is seeking.

"The Respondents, The Protestant Episcopal Church in the Diocese of South Carolina and the Trustees of The Protestant Episcopal Church in South Carolina, hereby move to dismiss the Notice of Appeal of the Appellant, The Episcopal Church in South Carolina (TECinSC) dated January 13, 2014," the responding Diocese's capture page reads. "The grounds for this motion are that the discovery order appealed from is interlocutory, not immediately appealable and not ripe for review."

The motion to dismiss goes on to explain that Judge Goodstein denied TECinSC's motion to compel the Diocese of South Carolina to turn over "all correspondence and other communication, including e-mails, prior to November 17, 2013, between Bishop Mark J, Lawrence and C. Alan Runyun referring to, concerning, or discussing the relationship between the Diocese of South Carolina and The Episcopal Church."

Those documents and communiqués are protected by the attorney-client privilege and are a part of Runyan's continuing attorney-work product.

The attorney-client privilege is an evidentiary rule that protects communications between a client and the attorney and keeps those discussions private and confidential and an attorney cannot be forced to divulge confidential information. While the attorney-work product shields the materials lawyers produce as they prepare for court.

The attorney-client privilege is as sacrosanct as the Seal of the Confessional is with a priest.

Mary Ann Mueller is a journalist living in Texas. She is a regular contributor to VirtueOnline

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