Opposition — Crabbe v. Hord

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Supreme Court, U,

FILED

FEB 241977

In The eg

Supreme Court of the Ruited States

OCTOBER TERM, 1976

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NO. 76-1051

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Vv

ROBERT CRABBE and KENNETH CAMPBELL,

Petitioners,

vs.

GLEN D. HORD,

Respondent.

MOTION TOG DENY

PETITION FOR WRIT OF CERTIORARI

Grorce Fintey and

R. G. Gururie

212 Union Bank Building

Fort Worth, Texas, 76102

Attorneys for Respondent

Glen D. Hord

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COCKLE PRINTING CO., 1822 St. Mary's Ave., Omaha

TABLE OF CONTENTS

Pages

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Statement WW. .... ieslitelbepbsieenia 2

Opinion Below. ....... ea ae ae nO ae aT ee 3

Argument. _................ sidliciiiasihiaasiniindiitbiahaiiuitareiinmin 7 3

Conclusion ................. chiniaidiiinaiaaeeina

CASES CITED

Alexander v. Hagedorn, 148 Tex. 565, 226 S. W.

2d 996 (1950) _...... siacesdeiiiesdubaiiiatieittaiaiainindeeannlataidabias 4,7

American Surety Co. v. Baldwin, 287 U. S. 156,

Re ily ee Se I Sitiiccnntneeieneniniiiinieinteiniiidindinnniiionain 2

Armstrong v. Manzo, 380 U. S. 545 (1965) 0... 7

Brownson v. Reynolds, 77 Tex. 254, 13 8S. W. 986

II, ° Ssh ledele cautious tlieeaiseeaatnais- ~<ebdsanielanlniaiaminiaaiatio 5

Gracey v. West, Tex. Sup. Ct., 422 S. W. 2d 913

Ee ee I een see 4

In Re: H. D., Jr., 511 S. W. 2d 615 (Tex. Civ.

McCann v. Ward County, 423 8S. W. 2d 339 (Tex.

nearer nT Ere ETD 7

Petro-Chemical Transport, Ine. v. Carroll, Tex.

TM DE CG i — 6

Swearingen v. Swearingen, Tex. Civ. App., 487

S * &§ FF eee vinsedeaeandi mata 5

TABLE OF CONTENTS—Continued

United Beef Producers, Inc., v. Lookingbill, 532

S. W. 2d 958 (Tex. 1976)

li

OTHER AUTHORITIES

28 U.S.C. § 1257 (2) and § 1257 (3)

Rule 16 (1) (1) (CG) neceecceneescsensnneee

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In The

Supreme Court of the Uuited States

OCTOBER TERM, 1976

NO. 76-1051

©

ROBERT CRABBE and KENNETH CAMPBELL,

Petitioners,

vs.

GLEN D. HORD,

Respondent.

MOTION TO DISMISS OR DENY

PETITION FOR WRIT OF CERTIORARI

Respondent moves to dismiss or deny the petition for

a writ of certiorari, pursuant to Rule 16 (1) (b) and (ce) of

the Rules of this Court.

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JURISDICTION

The Supreme Court should not accept jurisdiction of

this appeal or application for writ of certiorari under 28

U.S. C. § 1257 (2) and 4 1257 (3) because no federal ques-

tion or constitutional due process ground was seasonably

raised, presented, argued, decided or preserved in any state

court proceeding with the possible exception of a last-min-

ute motion for rehearing before the Supreme Court of

Texas, and this only with regard to the point concerning

Justice Spurlock. American Surety Co. v. Baldwin, 287

U. S. 156, 77 L. Ed. 231 (1938), opinion by Mr. Justice

Brandeis. Respondent accordingly moves to dismiss or

deny the application.

STATEMENT

This case involves an appeal from a default judgment

wherein Petitioners Crabbe and Campbell were personally

served with process. Respondent sustained serious and

permanent personal injuries as a result of being struck

from the rear while stopped in his automobile at a red

light by a truck being driven by Crabbe and owned by

Campbell, and thereafter, Crabbe and Campbell having

failed to appear and answer, Respondent obtained a joint

and several default judgment against them. Respondent’s

damages were set by the trial judge in the original pro-

ceedings after evidence was heard. In the ensuing trial

wherein Petitioners attempted to obtain relief from the

default judgment, the jury refused to find that either

Crabbe or Campbell were prevented from presenting their

defenses in the original lawsuit because of any mistake,

fraud or wrongful act of Respondent or his attorney.

Crabbe and Campbell did not even request any jury issues

inquiring as to their lack of fault or negligence in connec-

tion with their failure to appear and answer as required

by law after having been personally served with process

in the original case. Further, and contrary to the Texas

law, they did not request a jury issue inquiring as to

whether the granting of a new trial would occasion no de-

lay or otherwise work an injury to Respondent, and they

failed to verify their pleadings.

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.

OPINION BELOW

The opinion of the Court of Civil Appeals of Texas is

attached as Appendix A to Petitioners’ Application for

Writ of Certiorari.

ARGUMENT

The facts in this case, as disclosed by the entire rec-

ord and the opinion of the Court of Civil Appeals of Texas,

reveal the following:

1. Petitioners admit in their motion for recusal of

Judge Spurlock “there exists no constitutional or statutory

disqualification in this case,” and “these facts were not

used as a basis for a point of error in the application for

writ of error quite frankly because they apparently do not

in themselves amount to reversible error.” They further

admit that “appellants have the utmost regard for the in-

tegrity and objectivity of Justice Spurlock.” However,

Judge Spurlock voluntarily recused himself, and did not

participate in what was, necessarily, a 2-0 decision. There

is no basis, either in the record or in fact, that Judge Spur-

lock “was a former law partner of Hord’s attorney.”

2. Under Texas law, Petitioners unquestionably

failed to establish the necessary requirements to set aside

the default judgment against them. The Supreme Court

of Texas in Alexander v. Hagedorn, 148 Tex. 565, 226 S. W.

2d 996 (1950) and Gracey v. West, Tex. Sup. Ct., 422 S. W.

2 913 (1968), sets out the three requirements :

(1) A meritorious defense to the cause of action al-

leged to support the judgment.

(2) Which the petitioner was prevented from making

by the fraud, accident or wrongful act of the op-

posing party.

(3) Unmixed with any fault or negligence of peti-

tioner.

Petitioners alleged and proved that they were properly

served with personal service of citation in the original

case. In the trial attempting to set aside the default judg-

ment, the jury refused to find that either Respondent or

his attorney were guilty of any fraud or wrongful act in

connection with the original default judgment, and also

failed to find that any conduct on the part of Respondent

or his attorney in any way prevented Crabbe and Camp-

bell from entering their appearance in the original law-

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suit and presenting whatever defense they might have had.

Crabbe and Campbell also failed in offering any evidence

and obtaining any jury finding that they were not guilty

of any fault or neglect in connection with their failure to

appear in the original case as required by law. All of

the evidence in the entire record shows as a matter of law

that both Crabbe and Campbell and their representatives

were negligent in connection with their failure to file an-

swers. A. M. Pittman, an employee and agent of Melton

Truck Lines, who is not a licensed attorney contrary to

his prior representations to such effect to Hord’s counsel,

testified that he intended to handle the defense of the

original case for both Crabbe and Campbell, and that he

hired Laneaster Smith, a Dallas attorney, “to defend this

case.” Pittman testified he directed Lancaster Smith to

file answers for Melton and Crabbe, but an answer was

filed only for Melton. Crabbe and Campbell were relying

on Pittman to take care of the matters of defense by turn-

ing over their citations to him. Based on what amounted

to only oral instructions, A. M. Pittman and Lancaster

Smith failed to file answers for Crabbe and Campbell.

There is no evidence in the record that Hord, his attorney,

any clerk or deputy, or any judge had anything to do

either direetly or indirectly with the failure of Crabbe and

Campbell’s attorneys to file answers. In Brownson v.

Reynolds, 77 Tex. 254, 13 S. W. 986 (1890) the Supreme

Court of Texas declared: “It is a rigid rule that courts

of egjuity will not grant a party to a judgment a new trial

when the failure to have a full and fair presentation of his

ease has resulted from the negligence or mistakes of his

counsel.” This rule of law was followed in Swearingen v.

Swearingen, Tex. Civ. App., 487 S. W. 2d 784 (1972), which

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was a suit for a bill of review holding that the failure of

the parties’ counsel to file an answer because he forgot to

do so is imputed to the client and prohibits him from ob-

taining any relief.

3. The failure of the clerk to comply with Rule 239a

regarding the sending of notice of the judgment is incon-

sequential. Per the express terms of the Rule, the finality

of the judgment is not affected by the clerk’s failure to

send notice. Petro-Chemical Transport, Inc. v. Carroll,

Tex. Sup. Ct., 514 S. W. 2d 240 (1974), contains an ex-

haustive discussion on the effect of the clerk’s failure to

comply with a similar rule which requires the clerk to send

notice of a judgment or appealable order to a party (such

rule in its intent being analogous to that of Rule 239a),

the thrust of which is that if the requirements for a bill of

review are not first met then the failure of the clerk to

send notice would not waive any of those requirements. ~ In

the case before this Court, Crabbe and Campbell failed to

establish two of the three elements which the Supreme

Court of Texas has said were essential for a defendant

who has suffered a default judgment after proper personal

service of citation.

Further, in connection with this point, Respondent

has been unable to find any place in the record where Pe-

titioners have even attempted to raise these matters as

constitutional or due process questions for review by this

Court. It is respectfully submitted that neither of the

two ‘‘questions presented’’ by Petitioners have been here-

tofore seasonably raised. discussed, presented, or ruled on

by any state court.

4. As a matter of law, on the following grounds,

each of which are unquestionably established from the rec-

ord in this case, any of which would defeat Petitioners’

claim for relief, all of the lower courts have entered the

only legal and equitable judgment possible herein:

(a) The jury refused to find that either Crabbe or

Campbell were prevented from presenting their

defenses in the original lawsuit because of any

mistake, fraud or wrongful conduct of Respond-

ent or his lawyer, as required by Alexander v.

Hagedorn, supra.

(b) Crabbe and Campbell did not even request any

issue inquiring as to their lack of fault or negli-

gence in connection wiht their failure to appear

and answer, also as required by Alexander v. Hag-

edorn, supra.

(c) Crabbe and Campbell did not even request any

issue inquiring as to whether a new trial would

occasion no delay or work any injury to Respond-

ent, as required by United Beef Producers, Inc.,

v. Lookingbill, 5382 8. W. 2d 958 (Tex. 1976).

(d) Crabbe and Campbell failed to verify their peti-

tion for bill of review as required by McCann v.

Ward County, 423 S. W. 2d 339 (Tex. Civ. App.,

1968), and In Re: H. D., Jr., 511 8. W. 2d 615

(Tex. ‘Civ. App. 1974).

5. It is submitted that cases such as Armstrong v.

Manzo, 380 U. S. 545 (1965) as cited by Petitioners are

involved with situations where the defendant was not per-

sonally served with citation and was thereby deprived of

notice and hearing. Of course, such is not the case here,

as Petitioners had every right and opportunity to be

heard, but simply defaulted through their own carelessness

and neglect together with that of their counsel. They have

8

had notice and a full and fair heaving by four impartial

tribunals throughout these proceedings, but have simply

failed to prevail in each and every instance.

6. Without belaboring other examples, only one il-

lustration will be here given to show the exaggerations,

distortions, inaccuracies and untruths contained in Peti-

tioners’ application: on page 15 thereof, of the five points,

each is either untrue or a conclusion.

7. Finally, if a writ is granted and a reversal ensues,

the door will be opened to a flood of state court default

judgment cases. There is absolute necessity that finality

be accorded to judgments, and particularly where no fed-

eral question or constitutional grounds are seasonably

raised.

CONCLUSION

For the ‘foregoing reasons, the Court should dismiss

or deny the Petition for a Writ of Certiorari.

Respectfully submitted,

Grorce Fintey and

R. G. GuTurte

By: /s/ R. G. Guthrie

212 Union Bank Building

Fort Worth, Texas 76102

Attorneys for Respondent Glen D. Hord