In Uncategorized on 10/09/2020 at 08:51

The forest fires lately ravaging Oregon won’t excuse a video non-appearance at teletrial for Bryan M. Griggs & Valerie D. Griggs, Docket No.  18035-16, filed 10/9/20, especially as (1) Valerie D. showed, (b) Bryan M. phoned in, and (c) all the rest of the calendared Oregonian parties showed.

Bryan M. claims he can’t get to the law library because forest fires, so he needs more time, and wants a continuance (that’s an “adjournment,” for you State courtiers). Judge Albert G. (“Scholar Al”) Lauber says this is a “pure substantiation case” (Order, at p. 1). Hence, there’s no law question, only facts. IRS moved to toss Bryan D. for want of prosecution (he hadn’t done any pretrial prep with IRS), but Judge Scholar Al held that off for the next day, telling Bryan M. to show.

Bryan M. now wants to appeal Judge Scholar Al’s refusal to continue the case. But Section 7482 says the appellant needs a certificate from Tax Court, and Judge Scholar Al doesn’t hand those out so fast.

“Certification for an interlocutory appeal under I.R.C. sec. 7482(a)(2) is appropriate when the Court verifies that an interlocutory order (1) involves a controlling question of law, (2) with respect to which there is a substantial ground for difference of opinion, and (3) an immediate appeal from that order may materially advance the ultimate termination of the litigation. All of these requirements must be met before the Court will certify an interlocutory order for immediate appeal.” Order, at p. 2. (Citations omitted, but get them for your memos of law file).

Interlocutory appeal fast-tracks a major question of law which, if dealt with up front, could be a walk-off homer, or a called third strike on the last hitter up. And it must be pure law, no need for the Appelicans to review the record or anything else.

Bryan M.’s alleged arboreal conflagrations are none of the above. Besides, Bryan M. is obviously stalling, says Judge Scholar Al.

“Mr. Griggs’ reasons for requesting a continuance are groundless. There is no substantial ground for difference of opinion regarding Mr. Griggs’ assertion that he could not participate in the trial as scheduled. He first petitioned this Court in August 2016, and he was notified of the trial date on July 7, 2020, more than three months ago. He has had adequate time to prepare for trial, and there were no technological impediments to his participating in the trial via Zoomgov or telephone, as shown by his participation in the calendar call and the other parties’ participation in the trial.

“Nor would an immediate appeal advance the ultimate termination of this litigation. Virtually by definition a continuance would delay it. For the past year Mr. Griggs has persistently declined to cooperate with respondent’s counsel in preparing this case for trial. The record of this case makes clear that his motions for continuance, followed by a request for interlocutory appeal, are part of an ongoing campaign to defer trial of this case indefinitely. The final judgment rule is designed to prevent precisely this sort of ‘dilatory and harassing appeal.'” Order, at p. 3 (Citation omitted).

Is Judge Scholar Al going to reach for the Section 6673 yellow card?

Edited to add, 7/23/21: Judge Scholar Al did not. He let off Valerie D. on innocent spousery, and whanged Bryan M. for the post-concession deficiencies. See Order and Decision, 6/4/21.


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