Opposition — Estabrook v. Wise

Supreme Court of the United States

supreme Cour .

FILED

MAR 29 1978

_ MICHAEL RODAK, JR., CLERK

IN THE

OCTOBER TERM, 1977

No. 77-1208

LOUISE ORR ESTABROOK,

Petitioner,

v,

WATSON W. WISE and

PHILLIPS PETROLEUM COMPANY,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

AND

THE DISTRICT COURT OF APPEAL OF FLORIDA,

FIRST DISTRICT

BRIEF FOR RESPONDENTS IN OPPOSITION

W. SPENCER MITCHEM of

BEGGS & LANE

Post Office Box 12950

Pensacola, Florida 32576

Attorneys for Respondent

Watson W. Wise

and

WILLIAM F. McGOWAN, JR. of

CARLTON, FIELDS, WARD, EMMANUEL,

SMITH & CUTLER, P.A.

Post Office Box 3239

Tampa, Florida 33601

Attorneys for Respondent

Phillips Petroleum Company

INDEX

Page

gee ee ci nan ceshs adiebbee ii

ec eda cavcessunscscevckcoun 1

Ee ee ee: eee 1

IOI... « cniviics cccdiccnan iis ce vancs 1

CONSTITUTIONAL PROVISION INVOLVED ........... 2

eh oduirin sine attdind abd wr PTET he 2

NE Ore d cee cnai tek basa ywes 7

I. THE DECISION BELOW RESTS UPON INDE-

PENDENT AND ADEQUATE STATE

EEE ook. d4 5b o.n0c0559sckektiodd canmand: 8

Il. IN THE TRIAL COURT THE PETITIONER

NEITHER PLEADED NOR PROVED THE

APPLICABILITY OF TEXAS LAW TO RE-

SPONDENT’S AFFIRMATIVE DEFENSE THAT

THE PRIOR TEXAS DIVORCE JUDGMENT

WAS A BAR TO THIS PROCEEDING ........... 13

III. PETITIONER FAILED TO MEET HER BURDEN

OF PROVING TO THE FLORIDA COURTS

THAT THE FINAL DECREE OF DIVORCE

WOULD NOT OPERATE AS A BAR TO THESE

PROCEEDINGS UNDER TEXASLAW........... 15

ED {6:556 6 ao:05.00 ood CRbe CEL d UAVS i donee cide 19

ILE s oleh ho chads wnalvlnGb¥ dnb that .cdle-< 20

SEE sad nc ddahuedesen0 4s 5b s% es ane abieeinicn 4 one Al

ii

CITATIONS

Page

Constitutional Provisions

Article IV, §1,

Constitution of the United States .................... 2

Cases

Bell v. Bell,

180 S.W.2d 466 (Tex. Civ. App. 1944), writ refused ....17

Busby v. Busby,

469 S.WW 26 SBA (Ten. BOGE. owvcccccccccesseseuenees 16

Cannon v. Cannon,

43 S.W.2d 134 (Tex. Civ. App. 1931), writ refused ..... 16

Coyne v. Coyne,

325 So.2d 407 (Fla. 3d Dist. Ct. App.), cert. denied,

339 So.26 1960 Gin. BODE . . oo vc cvnstnssecuauunennee 14

Doherty v. Doherty,

279 S.W.2d 690 (Tex. Civ. App. 1955) ........ 0.0005. 16

Durley v. Mayo,

rr tse | Oe er (iar 8,9, 15

Edelman v. California,

BOGUS. TAG CHORE. occ coccsccuchesseesseneeel 15

Gasquet v. Lapeyre,

PBU.S. BGG). vce civedicenécevas tee 15

Geter v. Simmons,

SF Fan. 3B, GD Ow. B50 GREY iss evcccsvnsctinneeaeee 12

Gulle v. Boggs,

196 So.28 Dhan. WED)... ioe civil eee eee 12

Hanley v. Donoghue,

RROUD. BGs oc cect cendcdaeceeess cee 15

Herb v. Pitcairn,

BROWS. BEF GME. 65 oc be vdccccdnus peeeeeee 8

Hulbert v. City of Chicago,

TER U.D. FOCI: oc cv ceivicssevcisseun ee 15

Klinger v. Missouri,

SOUS. (33 Was.) ABP CHBGED «on vinsicsvccesseuel 8,9, 10

Ladd v. Ladd,

402 S.W.2d 940 (Tex. Civ. App. 1966),

dL Y 16

Lofton v. Sterrett,

23 Fin. 946, 2Go. GIP GB) og kccvkcnccisuceneveuee 12

Lynch v. New York ex rel. Pierson,

y Jk 1. = er 8,9, 10

Miller v. Shulman,

122 So.2d 589 (Fla. 3d Dist. Ct. App. 1960) ........... 14

Movielab, Inc. v. Davis,

217 So.2d 890 (Fla. 3d Dist. Ct. App. 1969) ........... 14

Murdock v. City of Memphis,

87 U.S. (20 Wall.) 590 (1875) ................. 10, 11, 15

Mutual Life Insurance Company of New York v. McGrew,

Ne cee eees 15

Simons v. Miami Beach First National Bank,

Ne ccc ccccceccceces 18

Stembridge v. Georgia,

EEE EEE 8,9

Thompson v. Thompson,

500 S.W.2d 203 (Tex. Civ. App. 1973) ............... 16

Townsend v. Townsend,

115 S.W.2d 769 (Tex. Civ. App. 1938) ............... 17

United Mercantile Agencies v. Bissonnette,

155 Fla. 22, 19 So.2d 466 (1944) ..................... 14

Walker v. Walker,

231 S.W.2d 905 (Tex. Civ. App. 1950) ............... 17

IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

NO. 77-1208

LOUISE ORR ESTABROOK,,

Petitioner,

v.

WATSON W. WISE and

PHILLIPS PETROLEUM COMPANY,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF FLORIDA

AND

THE DISTRICT COURT OF APPEAL OF FLORIDA,

FIRST DISTRICT

BRIEF FOR RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinions below are as set forth in the Petition.

JURISDICTION

The claimed basis for jurisdiction is set forth in the

Petition.

~ QUESTION PRESENTED

Whether a decision by a Florida appellate court that an

action in Florida by a Texas resident against her former spouse

to establish an interest in Florida realty was barred on the

2

principle of res judicata by an earlier Texas divorce decree

which dissolved these parties’ marriage properly presents a full

faith and credit question for this Court's review, where:

I. The decision of the Florida court also rested upon

other independent and adequate state grounds, and

Il. Petitioner failed to follow state procedure which

required that she plead and prove in the Florida trial

court the applicability of Texas law to and its effect

upon the defense that the Texas divorce decree was a

bar to the Florida proceeding, and

Ill. Petitioner failed to prove in the Florida courts that the

Texas divorce decree would not operate under Texas

law as a bar to her action.

CONSTITUTIONAL PROVISION INVOLVED

The claimed pertinent provisions of the United States

Constitution (Art. IV, §1) are set forth in the Petition at page 4.

STATEMENT

This is a petition for certiorari by the plaintiff’ in the trial

court from a decision of the District Court of Appeal of Florida,

First District, affirming a summary judgment for defendants

entered by the Circuit Court for Santa Rosa County, Florida.

The trial court did not recite the basis for its decision for

defendants (PX. 44A-45A). Upon review, the District Court of

Appeal concluded that there were several valid grounds upon

which to sustain the trial court's judgment. It expressly held that

the action by plaintiff to establish an implied trust in Florida

1 In this brief the Petitioner may sometimes be referred to as the

“plaintiff”. Similarly, “defendants” may sometimes be used with regard to

Respondents; “PX” will be used to refer to the appendix filed by Petitioner;

“RX” will be used to refer to the additional appendix filed by Respondents;

“R” will be used to refer to the original record filed in the District Court of

Appeal of Florida.

3

realty was barred by the doctrine of res judicata because of an

earlier Texas divorce decree which had dissolved the marriage

between plaintiff and defendant Wise.

Plaintiff filed her complaint in the Florida circuit court in

1974 to impose a crust in favor of herself upon certain mineral

rights in Florida real es:ate held in the name of defendant Wise

and leased, in part, to defendant Phillips Petroleum Company

(PX. 1A-11A). Recognizing that Florida is not a community

property state (PX. 5A-6A), plaintiff's complaint asserted that

the funds used by defendant Wise to acquire the Florida

interests in the 1940's presumptively belonged one-half to

plaintiff by virtue of the Texas community property laws (PX.

SA).

Plaintiff and defendant Wise, both Texas residents, had

been married in Texas (a community property state) in 1930. In

the early 1940's, Watson Wise, then employed in his father’s oil

business, began a series of travels throughout Alabama,

Mississippi and Florida. For the first half of that decade,

Watson Wise bought and sold numerous speculative mineral

interests in those states. The purchases were frequently joint

purchasing arrangements brought together between Watson

Wise and others (Wise depo. pp. 9-10, 17-19/R 348-49, 356-58).

Funds to purchase the interests taken in Watson’s name were

supplied by Watson's father, Mr. W. A. Wise (Wise depo. pp.

17-18/R 346-7). The underwriting of Watson's purchases by his

father was not revealed by Watson to the others with whom he

dealt. (Wise depo. p. 33/R 362). Watson chose to maintain the

appearance that he himself was the sole enterprising adventurer

(Wise depo. p. 18/R 347). Accordingly, all of those interests

appearing in Watson's name were in fact purchased with funds

from Watson's father and, therefore, the equitable interest was

totally in Mr. W. A. Wise (RX. A2).

The only written evidence regarding the source of funds to

purchase the property is the copy of the agreement between

4

Watson Wise and his father, W. A. Wise. That agreement

states:

October-1-1943 Tyler, Texas

To Dad:

I, Watson Wise, agree to assign any and all purchases

to my father, W. A. Wise, Owens Building, S. Broadway,

Tyler, all mineral leases, overrides or other land lease

purchases that may be bought by me and carried in my

name in Louisiana, Mississippi, Alabama, Florida, so long

as W. A. furnishes the expense money and payments for

the above realty. Any brokerage shall be my exclusive

profit and shall apply to my expense and livelihood. If

profits are realized on these after the deductions of expense

of all leases, land, mineral purchases, then I shall have a

one-quarter interest in the profits.

Signed,

Watson W. Wise

W.A.W.

The writing is in Watson Wise’s handwriting, and is initialed by

his father, W. A. Wise (RX. A3). Because Watson purchased the

properties in his name with his father’s funds, he and his dad felt

that their agreement should be written (RX. A3).

The trading of mineral interests in Florida subsided when it

appeared that the interests had no value. Mr. W. A. Wise died

in 1947 (Wise depo. p. 11/R 340), after the lapse of interest in

the Florida minerals. Prior to his death, however, Mr. Wise

made a gift of the properties to his son, Watson, and his

daughter, Ruth Ranck (RX. A2).

In 1964 Louise Orr Wise, now Louise Orr Estabrook, filed

suit for divorce in Texas against Watson Wise. In that

proceeding, Mrs. Estabrook sought a divorce and an

adjudication of her property rights. Upon filing the divorce

complaint, Respondent Wise was enjoined from going to the

home of the parties and from moving or in any way secreting

any of the assets of the parties or the records regarding the

assets (PX. 37A-41A).

5

During the course of the divorce action, Respondent Wise

was required to produce an inventory of his properties (PX.

40A). The parties set to work through their representatives to

compile data recorded in dozens of filing cabinets (William E.

Wise depo. pp. 6-9), (Turman depo. p. 14/R 443). The

enormity of the task is reflected by the inventory (R 152-255)

eventually prepared which shows that Watson Wise and Louise

Orr Estabrook divided properties valued in the millions of

dollars. The assets consisted of some three companies owned

and operated by Wise, four farms, a house in Colorado, a house

in Tyler, Texas, numerous bonds and savings accounts,

approximately 90,000 shares of stock of 70 companies, some 80

division orders representing interests in active oil production,

along with various other assets.

The interests in the Florida minerals involved in the instant

case were not included in this inventory. Mr. Edgar Turman, an

employee of the Wise companies who was assigned primary

responsibility to assemble records and carry them to Mrs.

Estabrook’s attorney for security, has offered direct testimony

suggesting that the records of Florida properties were simply

overlooked (RX. A4). Mr. Turman appears to have had a

neutral role in the proceedings, and in fact, subsequent to the

divorce, worked for both Petitioner and Respondent Wise

(Turman depo. p. 7/R 436; Estabrook depo. p. 29/R 497).

Prior to the entry of the final decree of divorce on May 25,

1956, the parties entered into an agreement which provided that

if either party thereafter desired to claim that some community

property had not been divided, then they would be free to do so

(PX. 9A-11A). The final judgment, however, was entered in a

form which provided only that “all issues as to the existence or

disposition of community property rights, or other property

rights, have, by the amended pleading filed herein, been

withdrawn and eliminated from this cause.” (PX. 23A).?

2 Although the District Court of Appeal’s opinion refers to the Texas

divorce decree as “incorporating the terms of the property settlement

agreement between the parties” (PX. 51A), it is apparent from the decree

that there was no such incorporation but rather a withdrawal of all property

issues (PX. 23A).

6

Petitioner clearly had, at one time, actual knowledge of her

husband's trips to Florida (RX. AS). Her statements on

deposition relate that she recalled such knowledge after the

inquiry by one Farrington subsequent to her divorce about

leasing what he described as “her’ interests in Florida (RX. AS).

Also, several documents have been placed in the record which -

bear the Petitioner's signature and which are conveyances prior

to the divorce of parts of the interests involved in this action

(Estabrook depo. pp. 19-22/R 47-90). A conclusion that can be

reached with respect to Petitioner's knowledge is that she did

not recall her actual knowledge of her husband's business in

Florida at the time of the divorce. Watson Wise has indicated

that he, too, did not recall the existence of these interests at the

time of the divorce (Wise depo. p. 63/R 392).

“ots

During the trial court proceedings in the instant case,

Petitioner stated that the factual basis for her claim was only the

Texas statutory community property presumption (RX. A1).*.

Answering an interrogatory from Respondent Phillips Petro-

leum Company questioning what facts were relied upon to

support the allegation that community property funds were

used to purchase the subject properties, Petitioner stated:

The purchase of the subject mineral interests during the

marriage, with no credible evidence being known to

Plaintiff which would establish that the property was

acquired other than by use of community funds; the

presumptions that apply in such circumstances under

Texas law (RX. Al).

While Respondents raised in the trial court a number of

different defenses to Mrs. Estabrook’s claims, the most

important ones were those enumerated by the District Court of

Appeal in its opinion (PX. 50A-51A):

3 The Texas community property statute creating this presumption and

the admission of its inapplicability to property acquired by a spouse through

gift or devise are set out in Petitioner's main brief (Brief of Appellant) in the

District Court of Appeal. See RX. A10-Al11.

7

1) Statute of Limitations.

2) Laches.

3) The Florida property was not purchased with

community funds. .

4) Petitioner's claim was founded upon a community

property agreement entered into in Texas and upon the

community property law of Texas which has no effect

upon real property located in Florida.

5) This action was barred by entry of the Texas divorce

decree between Petitioner and Respondent Wise.

The District Court of Appeal, after concluding that several

of the foregoing grounds were sufficient to sustain the summary

judgment for Respondents (PX. 51A), went on to discuss and

expressly hold that the present action was barred by the Texas

divorce decree. The Florida Supreme Court denied Mrs.

Estabrook’s petition for certiorari (PX. 64A).

ARGUMENT

The petition for certiorari should be denied pursuant to this

Court's long-standing principle that it will not review state

court judgments based upon adequate and independent state

grounds. In the present case, the Florida District Court of

Appeal expressly determined that there were “several” valid

bases for the trial court's summary judgment, of which only one

is claimed by Petitioner to involve a federal question. One or

more of the remaining grounds are not only independent state

grounds, but are also adequate in the sense that they are broad

enough to support the judgment of the state courts.

Moreover, the federal question Petitioner seeks to bring to

this Court, i.e., whether Florida courts gave full faith and credit

to the Texas divorce decree, was not properly raised and

developed in the Florida courts, because the application of

Texas law to the effect of the divorce decree in the Florida

courts was not pleaded and proved as required by Florida

practice, and, in any event, Petitioner failed to prove that

application of Texas law in this regard would require a different

result.

8

I

THE DECISION BELOW RESTS UPON INDEPEND-

ENT AND ADEQUATE STATE GROUNDS.

This Court has consistently adhered to the principle that it

will not review a state court judgment based upon an adequate

and independent state ground. Durley v. Mayo, 351 U.S. 277

(1956); Stembridge v. Georgia, 343 U.S. 541 (1952); Herb v.

Pitcairn, 324 U.S. 117 (1945). And where the state court bases

its decision on both federal and nonfederal grounds, and a state

ground is sufficient to sustain the judgment, this Court will not

undertake to review it. Lynch v. New York ex rel. Pierson, 293

U.S. 52 (1934); Klinger v. Missouri, 80 U.S. (13 Wall.) 257

(1872).

f

Indeed, it has been said that where adequate state grounds

are asserted and appear reasonable, ‘Petitioner, in order to

establish our jurisdiction, must demonstrate that neither of

these state grounds can account for the decision below.” Durley

v. Mayo, 351 U.S. at 281. The burden of establishing

jurisdiction is not met if “it appears that the judgment might

have rested upon a nonfederal ground.” Stembridge v. Georgia,

343 U.S. at 547.

As reflected by the opinion of the District Court of Appeal

(PX. 49A-53A), this action was originally commenced by

Petitioner in the Circuit Court for Santa Rosa County, Florida,

to establish a trust in her favor in certain Florida mineral

interests. Petitioner, a resident of Texas at all times, contended

that during her marriage to respondent Wise from 1930 to 1964,

Wise used community property funds to acquire these Florida

mineral interests.

Respondents defended on a number of grounds, five of

which were enumerated by the District Court of Appeal in its

opinion (PX. S5OA-51A). These defenses included:

9

1) Statute of Limitations.

2) Laches.

3) The Florida property was not purchased with

community funds.

4) Petitioner's claim was founded upon a community

property agreement entered into in Texas and upon the

community property law of Texas which has no effect

upon real property located in Florida.

5) This action was barred by entry of the Texas divorce

decree between Petitioner and Respondent Wise.

After the foregoing enumeration of defenses, the Florida

appellate court stated (PX. 51A):

The trial court did not recite any specific grounds in its

final summary judgment upon which to enter same. C ir

review of this extensive record discloses several velid

grounds upon which to sustain same; however, we will

confine our comments to the latter ground based upon the

Texas divorce (emphasis added).

Petitioner, of course, seeks review in this Court because of

the District Court of Appeal’s comments concerning the res

judicata effect of the Texas judgment. She does not discuss any

of the other grounds mentioned by the court, and there is no

attempt to demonstrate that grounds 1 through 4 cannot

account for the lower court's decision. Under the jurisdictional

tests formulated by this Court, the burden is upon Petitioner to

demonstrate that not one of the first four defenses is an

independent state ground which is adequate in the sense of

being broad enough to account for the summary judgment in

favor of Respondents. Durley v. Mayo, supra; Stembridge v.

Georgia, supra; Lynch v. New York ex rel. Pierson, supra;

Klinger v. Missouri, supra. Since Petitioner has failed to

discharge this burden, further review of the decision of the

District Court of Appeal should be declined by this Court.

The judgment of the Florida appellate court is expressly

based upon “several valid grounds”, only one of which is

10

asserted by Petitioner to involve a federal question. In Klinger

v. Missouri, supra, this Court stated:

But where it does not appear on which of the two grounds

the judgment was based, then, if the independent ground

on which it might have been based was a good and valid

one, sufficient of itself to sustain the judgment, this Court |

will not assume jurisdiction of the case. 80 U.S. (13 Wall.)

at 263.

See also Lynch v. New York ex rel. Pierson, 80 U.S. (13 Wall.)

at 54-55.

A few years later, in Murdock v. City of Memphis, 87 U.S.

(20 Wall.) 590 (1875), this Court described the extent to which it

would inquire into state law to determine the sufficiency of a

state ground:

6. If [the federal question] was erroneously decided against

plaintiff in error, then this Court must further inquire,

whether there is any other matter or issue adjudged by the

State Court, which is sufficiently broad to maintain the

judgment of that court, notwithstanding the error in

deciding the issue raised by the federal question. If this is

found to be the case, the judgment must be affirmed

without inquiring into the soundness of the decision on

such other matter or issue. 87 U.S. (20 Wall.) at 636.

The independence of grounds one through four can hardly

be questioned. The statute of limitations and laches are clearly

matters of state law which are unrelated to the effect of the

Texas divorce decree. Likewise, the question of whether, in

fact, the Florida mineral interests were purchased with

community funds stands completely apart from the federal

question Petitioner seeks to have reviewed. The fourth ground

involves the question of whether the Texas community

property law and the community property agreement entered

into between Petitioner and Respondent Wise shortly before

their divorce can have any direct effect upon Florida real

property and it does not rely upon the divorce decree in any

way.

11

The adequacy of at least the first three enumerated grounds

as a basis for supporting a judgment in favor of the Respondents

is clearly apparent when measured against the standards set by

this Court in Murdock v. City of Memphis, supra. A finding by

the lower court that Petitioner's claim of interest in Florida

mineral rights was barred by the statute of limitations or on

principles of laches would completely dispose of the entire case.

Likewise, a finding that the Florida interests were not purchased

with community funds would also be broad enough for

complete resolution of the action in favor of Respondents, as

there was no other basis alleged in Petitioner's complaint for her

claim of interest (PX. 1A-11A).

The fourth ground, i.e., that the community property

agreement and community property law of Texas can have no

direct effect upon Florida real property, is probably not an

adequate ground because Petitioner's effort in this litigation was

to establish a trust in Florida real property based on an alleged

community property interest in Texas funds, rather than to seek

a declaration that the Florida property was itself community

‘ property. However, it is doubtful that the District Court of

Appeal had this fourth ground in mind when it referred to

“several valid grounds” to sustain the judgment of the trial

court, for that appellate court disposed of ground four expressly

during its discussion of the effect of the Texas divorce decree

when it stated: “Florida is not a community property state, and

thus is not required to recognize an encumbrance predicated

upon a foreign state’s community property law” (PX. 52A).

Ground three in the District Court of Appeal’s opinion,

i.e., that the Florida interests were not purchased with

community funds, was not only an independent and

theoretically adequate basis to support the judgment for

Respondents, but it was also an adequate basis in fact. In the

trial court, Petitioner had largely if not entirely relied upon a

certain Texas rebuttable presumption declaring the community

nature of property acquired during marriage to establish her

interest in the funds used by Respondent Wise to purchase the

Florida mineral interests (RX. A1).

12

The evidence before the trial court to rebut the

presumption relied on by Petitioner to establish a community

property interest in the purchase funds is described in

Respondents’ Statement in this brief at pages 3-5, supra. In

summary, this evidence showed that Respondent Wise used his

father’s funds to acquire the Florida mineral interests, pursuant

to a written agreement. The property was taken in Respondent

Wise’s name for convenience. Shortly before his death, Mr. W.

A. Wise, Respondent Wise’s father, made a gift of the properties

to Respondent Wise and his sister. Property acquired by one

spouse by gift during the marriage is not deemed to be

community property under Texas law (RX. A10).

To decide whether the Florida property was purchased

with community funds, the Florida court had first to determine

the nature of the Texas community property presumption, i.e.,

whether procedural or substantive, and if found to substantive,

and therefore deemed applicable in Florida, the Florida court

was faced with the further question of whether the bare

presumption could suffice to meet the heavy burden of proof

under Florida law to establish an implied trust in real property.

See, e.g., Lofton v. Sterrett, 23 Fla. 565, 2 So. 837 (1887), where

the court stated that the evidence to establish a trust in real

estate must be “...so clear, strong and unequivocal as to

remove from the mind of the chancellor every reasonable doubt

as to the existence of the trust.” See also Geter v. Simmons, 57

Fla. 423, 49 So. 131 (1909). Finally, the Florida court may have

been faced with the question of whether, if applicable and

sufficient to create a prima facie case for imposition of an

implied trust in Florida real estate, the Texas presumption was

rebutted by the presence of direct, contrary evidence in

accordance with the law of Florida relating to the evidentiary

effect of presumptions. See, e.g., Gulle v. Boggs, 174 So.2d 26

(Fla. 1965).4

4 For a somewhat fuller discussion of these points, Respondents have

reproduced in the appendix hereto certain portions of their brief in the

Florida District Court of Appeal (RX. A11-A15).

13

Respondents submit that the lower courts certainly could

have decided that the Texas community property presumption

was procedural and therefore that it was not necessary to apply

it in Florida. Such a decision would have left Petitioner's claim

of interest with virtually no factual support. The lower court

could also have well decided that in any case the presumption

could not, standing by itself, meet the standard of proof

necessary to create an implied trust in real estate. Or, the court

could have determined that the presumption was insufficient to

establish a prima facie case for imposition of a trust in the face

of the direct, rebutting evidence of Respondents. Any of these

rulings would have decided adversely to Petitioner the issue of

whether the Florida interests were purchased with community

funds and would have resulted in judgment for Respondents on

this adequate and independent state ground. Because Petitioner

has failed to demonstrate that this state law ground could not

support the judgment of the District Court of Appeal, this

Court should decline to grant Petitioner further review. °

II

IN THE TRIAL COURT THE PETITIONER NEITH-

ER PLEADED NOR PROVED THE APPLICABILITY

OF TEXAS LAW TO RESPONDENT'S AFFIRMA-

TIVE DEFENSE THAT THE PRIOR TEXAS DI-

VORCE JUDGMENT WAS A BAR TO THIS

PROCEEDING.

Respondent Wise asserted the Texas final judgment of

divorce as a bar to the present action as is affirmative defense

number six (PX. 21A). The Petitioner filed a simple denial to

this affirmative defense (PX. 25A). She made no attempt either

to plead or to prove the applicability of Texas law to this

defense, although Florida law specifically requires a party

relying on foreign law to plead the law upon which she relies.

5 The District Court of Appeal could also have based its affirmance of the

trial court’s summary judgment for Respondents on the independent

defense of laches. Rather than extend further this portion of the brief,

Respondents have reproduced in the appendix hereto that section of their

brief in the Florida appellate court dealing with laches (RX. A15-A19).

14

See Movielab, Inc. v. Davis, 217 So.2d 890 (Fla. 3d Dist. Ct.

App. 1969), and the numerous authorities cited therein.

In argument before the trial court on this issue, Petitioner

confined herself solely to the application of the law of the State

of Florida (See that portion of Petitioner's brief to the trial court

directed to this issue RX. AS5-A10). In the absence of any

pleading or proof of Texas law on this issue, the Florida trial

court correctly applied the law of Florida in determining that

the Texas final decree of divorce entered some ten years earlier

barred this suit. Coyne v. Coyne, 325 So.2d 407 (Fla. 3d Dist.

Ct. App.), cert. denied, 339 So.2d 1168 (Fla. 1976); United

Mercantile Agencies v. Bissonnette, 155 Fla. 22, 19 So.2d 466

(1944).

In her reply brief in the District Court of Appeal, the

Petitioner for the first time in this lawsuit attempted to argue

the applicability of Texas law to the question of whether she

was barred from bringing this action to determine the title to

Florida property by the prior final judgment of divorce.

The Respondents immediately filed with the appellate

court a supplemental brief citing the well established Florida

rule that if a litigant is to rely upon the law of a foreign state,

she must plead and prove that law at the lower court level (RX.

A19-A21).

In order for the applicability of foreign law to be raised as

an issue on appeal, the foreign law must have pleaded and

proved at the trial court below. See Movielab, Inc. v. Davis,

supra, and Miller v. Shulman, 122 So.2d 589 (Fla. 3d Dist. Ct.

App. 1960), where the court stated the applicable appellate

principle as follows:

The absence from the record of both pleading and proof of

foreign law precludes our consideration of this contention

raised for the first time in appellant's brief. 122 So.2d at

590.

15

The failure of Petitioner to plead, present proof or request

the trial court to take judicial notice of the law of Texas and its

applicability to this issue precluded the consideration of Texas

law by the District Court of Appeal. The Petitioner's

presentation of Texas law and argument of its applicability for

the first time in her reply brief in the Florida District Court of

Appeal was too late to raise a full faith and credit question

under the constitution because the Florida District Court of

Appeal was required to review the judgment of the trial court in

light of the law and evidence presented to the trial court. For the

same reason, the Florida Supreme Court was precluded from

considering Petitioner's argument as to Texas law on the

petition for certiorari, which it denied without opinion.

A federal question which the highest court of a state is, by

its settled practice, required to disregard because it was not

seasonably raised in the trial court, will not serve as a basis for

jurisdiction of this court. Such non-compliance with local

procedural rules is an adequate state ground for the decision

below. Durley v. Mayo, supra; Edelman v. California, 344 U.S.

357 (1952); Hulbert v. City of Chicago, 202 U.S. 275 (1906);

Mutual Life Insurance Company of New York v. McGrew, 188

U.S. 291 (1903).

As the Texas law was not properly brought to the attention

of the Florida courts, the Petitioner has omitted an essential step

in invoking the full faith and credit clause. Gasquet v. Lapeyre,

242 U.S. 367 (1917); Hanley v. Donoghue, 116 U.S. 1 (1885).

Ill

PETITIONER FAILED TO MEET HER BURDEN OF

PROVING TO THE FLORIDA COURTS THAT THE

FINAL DECREE OF DIVORCE WOULD NOT

OPERATE AS A BAR TO THESE PROCEEDINGS

UNDER TEXAS LAW.

Although the Petitioner contends that the Texas divorce

judgment would not have barred these proceedings in Texas,

16

she neither pleaded, sought judicial notice of, introduced into

evidence nor cited in her briefs filed with the Florida appellate

courts any Texas authority directly on point.

The Petitioner does cite portions of articles on Texas law

and several Texas cases, including, Thompson v. Thompson,

500 S.W.2d 203 (Tex. Civ. App. 1973), and Busby v. Busby,

457 S.W.2d 551 (Tex. 1970), which hold that where all

community property rights are not partitioned in a divorce

decree, the judgment does not preclude a later suit seeking

partition of undivided community property. There are other

Texas cases which raise doubt that such is the law of Texas and

indicate that the final decree of divorce is a bar to a subsequent

proceeding seeking to partition property not presented to the

divorce court. See Ladd v. Ladd, 402 S.W.2d 940 (Tex. Civ.

App. 1966), writ refused n.r.e.; Cannon v. Cannon, 43 S.W.2d

134 (Tex. Civ. App. 1931), writ refused.

To the extent that the Texas courts allow parties to seek

partition of community property which was not partitioned in

the final divorce proceedings, they appear to do so because of

the nature of community property in Texas, where the courts

state: “An interest in community property is not a claim or right

against the other spouse.” See Thompson v. Thompson, 500

S.W.2d at 208. A careful reading of the opinion and dissent in

Busby v. Busby, supra, indicates that the Texas Supreme Court

would have found that action barred by res judicata if the

majority had not determined that disability pay was

community property.

In matters not involving community property, the law of

Texas is in harmony with the law of Florida in holding that

under the rule of res judicata a final judgment of divorce bars

relitigation of all issues connected with a cause of action or

defense which either were or might have been presented to the

divorce court and determined thereby. See Doherty v. Doherty,

17

279 S.W.2d 690 (Tex. Civ. App. 1955); Townsend uv.

Townsend, 115 S.W.2d 769 (Tex. Civ. App. 1938).

Texas courts recognize that real estate in Florida held only

in the name of the husband is not community property; it is the

husband's separate property. See Bell v. Bell, 180 S.W.2d 466

(Tex. Civ. App. 1944), writ refused; Wainer v. Walker, 231

S.W.2d 905 (Tex. Civ. App. 1950). They further recognize that

the wife's claim to an interest in the husband's separate Florida

property is a claim against her spouse which she could and

should have made in the divorce action. See Walker v. Walker,

supra.

It is, therefore, logical to conclude that if Petitioner had

pursued this case in Texas, where she originally filed it, the

Texas courts would not have followed their rule in regard to

community property. As this is an action by which Petitioner

seeks to compel Respondent to grant her an interest in his

separate Florida property, the Texas courts would most likely

have applied the rule of res judicata as it is generally applied in

both Texas and Florida and held that the Petitioner is barred by

the final divorce judgment.

If Petitioner had properly placed the issue of Texas law and

its application before the Florida courts, she would have had the

burden of showing the Florida courts that under Texas law the

final judgment of divorce does not constitute the res judicata

bar it does in Florida. Even if the authorities she presented in her

briefs were considered, she did not meet her burden since those

authorities speak only of community property, which is not

here involved. This is particularly true as the Texas law in

regard to the general application of the rule of res judicata to

final judgments of divorce appears to be in harmony with the

law of Florida. Petitioner simply has not shown any Texas

authority that the final divorce judgment would not be a bar to

this later proceeding in which the wife seeks an interest in her

husband's separate property that she could have sought at the

time of the divorce ten years earlier.

18

It follows that the Florida courts did not violate the full

faith and credit clause when they held this action barred by the

final judgment of divorce. See Simons v. Miami Beach First

National Bank, 381 U.S. 81 (1965)

19

CONCLUSION

Petitioner has failed to demonstrate that she is entitled,

under this Court's jurisdictional guidelines, to review by

certiorari. Rather, she has attempted to argue again the merits

of her claim which she has already pursued without success

through three levels of Florida courts. In her attempt to secure

review by one more court, she has sought belatedly to inject

into the case a full faith and credit question which was never

properly raised in the Florida courts. Petitioner has also

overlooked the presence of adequate and independent state

grounds for the judgment below.

For the foregoing reasons, certiorari should denied.

Respectfully submitted,

W. SPENCER MITCHEM of

BEGGS & LANE

Post Office Box 12950

Pensacola, Florida 32576

Attorneys for Respondent

Watson W. Wise

and

WILLIAM F. McGOWAN, JR. of

CARLTON, FIELDS, WARD, EMMANUEL,

SMITH & CUTLER, P.A.

Post Office Box 3239

Tampa, Florida 33601

Attorneys for Respondent

Phillips Petroleum Company

20 Ai

PROOF OF SERVICE

| HEREBY CERTIFY that on this 22% “day of March,

1978, three copies of the Brief for Respondents in Opposition

and Appendix were mailed, postage prepaid, to Wilmer H.

Mitchell and Lawrence W. Oberhausen, 130 East Government

Street, Pensacola, Florida 32501, counsel for the Petitioner. | I

further certify that all parties required to be served have been

served.

APPENDIX

SMITH & CUTLER, P.A.

Post Office Box 3239

Tampa, Florida 33601

Counsel for Respondent

Phillips Petroleum Company

Aii

INDEX TO APPENDIX

Portion of Interrogatories of Defendant,

Phillips Petroleum Company, to Plaintiff,

a Le ee ele ns 6 won & gore k a Al

Excerpts from depositions:

Deposition of Watson Wise, By Mr. Mitchell —

ae 6 Pe Oe ee iat ia's sae ds A2

Deposition of Edgar Turman, By Mr. Mitchell —

ee ee os A4

Deposition of Louise Orr Estabrook, By Mr. Mitchem —

No ese eebed pet eres el A4

Excerpt from Plaintiff's Brief in trial court

on Motion for Summary Judgment .................. AS

Excerpts from Brief of Appellant in the

District Court of Appeal of Florida,

EES bn.k Se dN CONOR SUL b4 hs wes dss cacecacen A10

Excerpt from Brief of Appellees in the

District Court of Appeal of Florida,

NS 5h vaG Und 46S RRS ERUS ES UNS ah RENEE All

Excerpt from Reply Brief of Appellees in the

District Court of Appeal of Florida,

crc cite, ccCar ha kdeeane os % eae bane Al9

Al

PORTIONS OF INTERROGATORIES OF DEFENDANT,

PHILLIPS PETROLEUM COMPANY,

TO PLAINTIFF, LOUISE ORR ESTABROOK

IN THE

CIRCUIT COURT FOR SANTA ROSA COUNTY, FLORIDA

CASE NO. 74-C-53

LOUISE ORR ESTABROOK,

Plaintiff,

DS.

WATSON W. WISE and

PHILLIPS PETROLEUM COMPANY, a Corporation,

Defendants.

(R. 80)

INTERROGATORIES OF DEFENDANT,

PHILLIPS PETROLEUM COMPANY,

TO PLAINTIFF, LOUISE ORR ESTABROOK

Defendant, PHILLIPS PETROLEUM COMPANY, by its

undersigned attorney, hereby propounds the following Inter-

rogatories to be answered by Plaintiff, LOUISE ORR

ESTABROOK, in writing and under oath within the time

allowed under the Florida Rules of Civil Procedure:

1. With regard to your allegations in paragraph 9 of the

Complaint that “all of the interests in lands. . . described in this

paragraph were acquired with community funds of Plaintiff,

LOUISE ORR ESTABROOK, and Defendant; WATSON W.

WISE...,” please state with particularity:

a. The facts you rely upon.

The purchase of the subject mineral interests during the

marriage, with no credible evidence being known to Plaintiff

which would establish that the property was acquired other

than by use of community funds; the presumptions that apply

in such circumstances under Texas law.

A2

EXCERPTS FROM DEPOSITIONS

DEPOSITION OF WATSON W. WISE (R. 368-370, 400)

Direct Examination

. * «

By Mr. Mitchell:

[39] Q What I'm getting at is, for all of these interests that you

acquired in your name and retained in your name at the time

you acquired them. As between you and your father, who

owned them?

A They were my father’s.

{40} Q One hundred percent?

A My father had not told me that the boom was over.

And my father later on told me, before he died, and I think my

sister was there. And he said, ‘Well. if this is any good, you

children have at least got something to make you some money.”

But these belonged to my dad.

* . * * *

Q Excuse me. I'm not interested in the rig. I'm talking

about what we've got in this law suit.

A_ He paid for these. He paid for these. They were his.

And before he died he told my sister and me. “If they ever

amount to anvthing, why, you can have them.”

Q Well, are you saying he gave you these properties or

not?

[41] A. Before he died.

Q So, you then maintain that these interests which were

purchased in your name were given to you and your sister,

Ruth Rank, before your father died. Is that correct?

A He told us that they were ours. Yes.

. * . +

= ee ee,

A3

(71]Q There has been shown in various depositions and

things, a memorandum dated October the Ist, 1943. It’s in

hand. vriting on lined paper.

Yes.

It is in this —

I'm familiar with it.

— Mr. Hodges’ deposition, Joint Exhibit Number 1.

Yes.

>O +H >

I probably should ask you to tell me if that is your

handwriting, for instance, on the major portion of that.

A_ Yes. It is my writing.

Q And it says: “To Dad, Watson Wise, et cetera.” Did

you, yourself write that?

A Yes. I wrote that.

Q It has the date October 1, 1943. Was that date [72]

written on at the time that this was done?

A. All done at one time.

Q Do you recall actually the circumstances of when and

where this was done?

A_ No, not exactly. Dad and I at one time or another, we

were together. I think | was maybe going away, and I might

have said, “Dad, maybe we should kind of have some kind of

understanding about this thing. We've talked about it.” And we

just wrote a littke memorandum out some place. I forget where

it was.

Q Did you see him initial it at the bottom? Do you know

those are his initials?

A Well, 1 can recognize my father’s. I've got lots of

papers that I have his initials on. And I recognize those as

Dad's. Those are his initials.

Q Those are his initials?

A Those are my dad's initials.

A4

Q Did he initial them in your presence?

A_ I think so.

+ . .

DEPOSITION OF EDGAR TURMAN (R. 442)

Direct Examination

* * *

By Mr. Mitchell:

[13] Q You were told then to get up all the property you could

find. Would that be correct?

A That is correct.

Q Now, we have copies of that inventory submitted by

Mr. Wise. And it does not contain any of the property that is

currently involved in this law suit in Santa Rosa County,

Florida. And the properties that we are talking about are in

several Florida Counties, their mineral interests. Can you

explain why those properties were not listed in that inventory?

If you know.

A_ To the best of my knowledge, the reason that that or

any other non-producing mineral properties, were excluded,

was that they were just looked over. The problem is recalling

ten years back. It’s not easy. But, I worked on this thing almost

a year, and somewhere in the shuffle, the non-producing

minerals of some amount were overlooked. At the time |

finished up with the situation | thought that I had everything

pretty well nailed together, but obviously we didn't.

. . * . .

DEPOSITION OF LOUISE ORR ESTABROOK

(R. 482-83, 510)

Direct Examination

i. * .

a a 6 AONE Ol OO a eT Oe ae

6 ne a et ee ee

AS

By Mr. Mitchem:

[14] Q When did Mr. Wise first start going to Mississippi,

Alabama and Florida?

A_ I wouldn't remember. In fact, the first time that I did

remember that he had gone to those specific places was when

Mr. Farrington called me and asked me if I knew I had some

property in Florida.

[15] Q You do remember him going now, don’t you?

A After 1 talked with him on the phone, then I set down

and tried to think. Because, I said, “No. I don’t have any.” And

I did remember that he had gone to Florida. But that was the

first recollection that I had.

* * * 7

[42] Q Mrs. Estabrook, please tell me when you first, and I'll

use the word ‘remembered’, since I know you must have known

in ‘43 or ‘44 that he was over in Florida, when you first

remembered he was over in Florida buying or looking after oil

interests, or something, for anybody?

A_ Not until whenever it was that Mr. Farrington called

me.

+ * + * *

EXCERPT FROM PLAINTIFF'S BRIEF IN TRIAL COURT

ON MOTION FOR SUMMARY JUDGMENT

* * * *

Is the Plaintiff Barred

by the Texas Divorce Action?

[39] Defendant Wise contends pursuant to his sixth affirmative

defense that the Plaintiff is barred by virtue of the final decree

of divorce entered in the Court of Domestic Relations in Smith

County, Texas, May 25, 1965. Defendant Wise makes this

contention in spite of the fact that the inventory he filed in the

case did not list these properties, in spite of the fact that the

stipulation of the parties of May 18, 1965, specifically provided,

Aé

“ _ if it should hereafter appear that either party desires to

claim that some community property has not been divided,

he or she shall be free to do so and shall be entitled to

pursue his or her rights and remedies thereto.”;

and in spite of the fact that the judgment in the divorce entered

May 25, 1965, found,

“ that all issues as to the existence of disposition of

community property rights, or other property rights, have,

by the amended pleadings filed herein, been withdrawn

and eliminated from this cause.”

{40] Defendant Wise by his memo (p. 3) asserts that it is well

settled that a final decree of divorce settles all property rights of

the parties and bars any action thereafter by either party to

determine property rights “since the doctrine of res judicata is

applicable even where property rights are not put in issue, if the

issue could have been raised.” Mr. Wise cites 10A Fla. Jur.,

Dissolution of Marriage, §269; Finston v. Finston, 160 Fla. 935,

37 So. 2d 423 (1948); Dotter v. Dotter, 147 So. 2d 209 (2 DCA

Fla. 1962); Jones v. Jones, 140 So. 2d 318 (3 DCA Fla. 1962);

McEachin v. McEachin, 154 So. 2d 894 (1 DCA Fla. 1963); and

Cooper v. Cooper, 69 So. 2d 881 (Fla. 1954). These citations

will be reviewed in detail since they do not support the

Defendant's contention.

The obvious and vital distinction in Finston v. Finston,

supra, is that the property rights in question were before the

Court and there was no fraud involved. As the Court stated at

page 937,

“It further appears from the pleadings in the named suit

that the property rights in question were before the Court

when final decree was entered and were adjudicated, so

that the doctrine of res adjudicata was a proper defense to

raise here and should have been permitted.”

In Dotter v. Dotter, supra, there was no contention that

property of the parties had been fraudulently or otherwise

concealed. The property in question was before the trial court

as revealed by the Dotter opinion at page 210:

a ee oe

4 eee

ee ee ee

ee Ne ee ee

A7

“Before the Chancellor in the divorce proceeding were the

property rights of the parties. The final decree was

rendered, as we have indicated, and no appeal from it has

been taken.”

[41] Therefore, the Second District held that subsequent orders

by the same trial court relating to property rights were not

proper. The case has no application to a situation in which

property was not revealed during the divorce proceeding,

where the parties withdrew the division of property from the

consideration of the court and reserved rights to seek a fair

division of any property subsequently revealed, where the

judgment of the court stated that property questions were not

before the court, and where the subsequent action is not an

attempt to have the trial court modify its order after the time for

appeal is run, but rather, is a separate action upon equitable

principles to establish rights in property which had not been

previously disclosed.

The parties to Jones v. Jones, supra, had been previously

divorced in Kentucky. The Kentucky decree approved a

settlement of property rights which included a full release by the

wife. The husband's interest in a certain Hub Trust on Florida

realty was known and considered at the time of the Kentucky

settlement which was approved by the Kentucky decree. This is

made clear from the Jones opinion at page 320:

“John’s interest in the Hub Trust was known and taken into

consideration at the time of the property settlement

involved in the divorce proceeding...”

Subsequently the wife brought a suit in Dade County,

Florida, to establish a resulting trust in the same Hub Trust

properties. In this situation the Florida court rightfully declined

to re-open the property question since it had previously [42]

been adjudicated and there were no allegations of fraud or

concealment.

In McEachin v. McEachin, supra, a Florida Circuit Court

entered a final decree of divorce and determined property

rights. The trial court retained jurisdiction,

“for the entry of such other and further orders as may be

proper herein, and for the purpose of modifying any orders

herein.” (p. 895)

A8

This was done in July of 1962 and in September of 1962 the

husband asked for change of visitation and custody rights. At

that time the trial court modified its final decree as to property

rights.

The First District held that the Chancellor could modify

custody questions but could not modify property rights since

there are different bases for retaining jurisdiction permissible as

to custody but not permissible as to property. Note that the

property rights in question and the specific property involved

were before the court when the original order was entered.

The McEachin case stands for nothing more than to

indicate that mere general language reserving jurisdiction

cannot bestow jurisdiction otherwise lost by final decree and no

appeal. Such a holding had nothing whatsoever to do with

fraud, undisclosed holdings and other causes which would

invoke the “recognized processes of equity,” as recognized by

the First District in McEachin at page 87 citing Cortina v.

Cortina, 98 So. 2d 334 (Fla. 1957). The Plaintiff here is seeking a

recognized process of equity to establish a resulting trust.

[43] In Cooper v. Cooper, supra, a divorce was granted

involving a written agreement of settlement. Deeds were

executed to the husband per the agreement.

The wife brought a new suit to set aside the deeds claiming

threats and force (‘pinching legs,” e.g.). The Appellate Court

said that the subsequent suit was improper and attempted to

retry the divorce. The key point was that all the matters alleged

with reference to threats and force were known by the wife

during the divorce, and obviously such matters had to be raised

in the divorce action and not in a subsequent action. It was only

in that context that the Cooper court barred a relitigation of

property rights which could have been introduced in the

divorce litigation even though they were not so introduced.

The Cooper holding was not authority and was never

intended to be authority to preclude an action such as the case

at bar. This is amply demonstrated by this statement from the

opinion of the Florida Supreme Court at page 884:

“Nothing now relied upon was discovered by Appellee

after the divorce case was ended. All the circumstances

oe ee ee ee

Oke See Fie OO Se ee NED le Nee OE SAE On a oe

Ag

surrounding the execution and delivery of the deeds were

as well known to Appellee when they were happening and

the divorce suit pended as they were when she filed the bill

in the immediate case.”

The distinction between the situation in Cooper and the

present case is notable.

Each of the cases cited by the Defendant Wise on the

subject of the finality of a divorce decree as to property rights of

the parties has been reviewed above to show that none of the

[44] cases involved any situation such as that in the case at bar,

and the Florida cases cited by the Defendant make no attempt to

bar and, in fact, implicity [sic] recognize the propriety of a

subsequent case to resolve property rights which were not

before the divorce court, which would include cases of fraud or

other concealment of assets entitling a Plaintiff to seek the

recognized processes of equity.

It should be noted also that subsequent Florida cases cited

in 10A Fla. Jur. Dissolution of Marriage §258 footnote 14 show

that Florida has recognized that a chancellor may enter a post

final decree order making an adjudication relative to the

determination of property rights, at least where the parties have

so agreed and the rights involved are a wife's claim to a special

equity in certain of the property. Farr v. Farr, 249 So. 2d 761 (3

DCA Fla. 1971). The Florida Jurisprudence section indicates

that it is not entirely clear whether a divorce court has power to

retain jurisdiction citing Sistrunk v. Sistrunk, 235 So. 2d 53 (4

DCA Fla. 1970) on the other side of the question. However, the

holding in Farr v. Farr has since been approved in Hyman v.

Hyman, 310 So. 2d 378 (3 DCA Fla. 1975) and followed in the

later Fourth District case of Becker v. King, 307 So. 2d 855 (4

DCA Fla. 1975). Thus, it is seen that the bar urged as iron-clad

by the Defendant Wise is subject to exception and does not

purport to preclude action such as the Plaintiff brings here.

The weakness of the Defendant Wise’s contention on this

point is aptly demonstrated by the strained argument (pages 4

and 5 of Mr. Mitchem’s memorandum on this point) that the

“interest [45] here in question could have been put in issue in the

Texas proceeding, if the parties had desired to do so...” Also,

the defense memo argues that Mrs. Estabrook could have

received fair treatment if she had “... bothered to bring the

A10

Florida interests to the attention of the Court or otherwise

dispose of the same.” In the face of the facts that Watson W.

Wise, manager and trustee of the community property, failed to

reveal in a sworn inventory the existence of these interests, and

that Mr. Wise lamely contends that he himself overlooked these

interests, it is outrageous to suggest that Mrs. Estabrook did not

“bother” to have these interests adjudicated because she did not

“desire” to do so.

Defendant Wise contends at page 5 of his memo on this

point (citing Walker v. Walker which will be treated fully

below) that Mrs. Estabrook is somehow barred by the

stipulation and order on the basis that the stipulation applied

only to community property and is not applicable to the Florida

property in question. Such an argument defies the plain intent

and language of the stipulation and the judgment entered

pursuant thereto indicating that all matters with reference to

“community property rights or other property rights” are

eliminated from the cause with the parties retaining their rights

to pursue any after-discovered assets.

. 7 -_ 7

EXCERPTS FROM BRIEF OF APPELLANT IN THE

DISTRICT COURT OF APPEAL OF FLORIDA, FIRST

DISTRICT.

* * + *

{18] Community property consists of all property acquired

during the marriage other than by gift, devise or descent or in

exchange for separate property and also includes the income of

all property of the spouses, both separate and community. Tex.

Family Code §5.01(b).

[19] At all times material to the disposition of this controversy,

Article 4619 of the Texas Revised Civil Statutes was in full force

and effect. That statute reads in part as follows:

“Article 4619. — Community Property

$1.

ee ee ee et een

All

All property acquired by either the husband or wife during

marriage, except that which is the separate property of

either, shall be deemed the community property of the

husband and wife; and all the effects which the husband

and wife possess at the time the marriage may be dissolved

shall be regarded“as common effects or gains, unless the

contrary be satisfactorily proved. During coverture the

common property of the husband and wife may be

disposed of by the husband only...”

* * * *

EXCERPTS FROM BRIEF OF APPELLEES IN THE

DISTRICT COURT OF APPEAL OF FLORIDA, FIRST

DISTRICT.

* « * aa

{15] As a general rule, it is stated that presumptions are

procedural matters and the forum need not apply presumptions

arising in other jurisdictions. See Annotation, Governing Laws

as Regards Presumption and Burden of Proof, 78 A.L.R. 883

(1932); Leflar, supra, at 124.

The Florida Supreme Court has stated that questions of

presumptions are for the law of the forum to resolve. United

Mercantile Agencies v. Bissonnette, 155 Fla. 22, 19 So.2d 466

(1944). Also, it is noted in 6 Fla. Jur., Conflict of Laws §41 that

questions of evidence, which encompass presumptions and

burdens of proof, are governed by the law of the forum. In

other words, the general rule is that presumptions from other

jurisdictions do not apply in proceedings in Florida. This initial

inquiry thus suggests that the Texas presumption can have no

bearing on this Florida court’s determination of appellant's

rights in the consideration used to purchase the Florida real

property.

The appellees recognize that other jurisdictions have

created an exception to the general rule noted about

presumptions. Sometimes the presumption is said to be more

than procedural, being conclusive and irrebuttable, or so [16]

inextrice bly bound to a right that it is deemed “substantive.”

The exception provides that in such cases the presumption from

another jurisdiction is to be applied in the forum state.

Annotation, 78 A.L.R. at 888. Appellees urge, on several bases,

Al2

that the Texas community property presumption is not within

such an exception, but is a procedural matter only, which need

not be applied in this court.

Evidence of the procedural nature of the presumption is

found in several sources. The first very important indicia that

that presumption has only evidentiary effect, and is not

substantive, is the fact that in Texas the presumption merely

causes a shift in the burden of production of evidence. The

presumption does not shift the burden of proof (persuasion) on

the issue of the character of property as community or separate.

Gillespie v. Gillespie, 110 S.W.2d 89 (Tex. Civ. App. 1937);

Daggett v. W. B. Worsham & Company, 264 S.W. 180 (Tex.

Civ. App. 1924). As stated in the Treatise on Texas Evidence by

Dean McCormick, noted authority and author of McCormick's

Handbook of the Law of Evidence:

It is no where denied that the presumption has at least the

effect of placing the burden of evidence on the party

asserting the separate character of the property. But

whether it has any effect on the burden of persuasion is

more difficult problem and a matter on which our courts

are not in agreement. A part of the difficulty results from

the indiscriminate use by our courts of the term “burden of

proof.” A further complication is the failure generally to

[17] indicate where the burden of persuasion should rest in the

first place. The statement is often made that the burden of

proof rests upon the party asserting the separate character

of the property. In some cases the location of the burden or

persuasion is made to depend upon whether the separate

character of property was pleaded, or whether the party

merely pleaded a general denial to the opponent's assertion

that the property was community. It is believed that this

distinction is unsound. The better view is represented by

those cases which hold that the burden of persuasion is not

affected by the presumption. McCormick and Ray, Texas

Law of Evidence, §116.

More recently, the Texas Supreme Court in Robertson Tank

Lines, Inc. v. Van Cleave, 468 S.W.2d 354 (Tex. 1971), in a case

dealing with another presumption, asserted that in Texas

presumptions do no more than shift the burden of going

forward with the production of some evidence. Later in

Wohlenberg v. Wohlenberg, 485 S.W.2d 342 (Tex. Civ. App.

LO ee ease AO

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1972), the Robertson Tank Lines rationale was applied to the

community property presumption, further reinforcing the view

of Dean McCormick. It should be noted, too, that the

community property presumption is unquestionably rebutt-

able. Hodge v. Ellis, 277 S.W.2d 900 (Tex. 1955). This is further

evidence of its procedural nature.

Finally, in assessing whether this presumption is but a

procedural matter, it is helpful to consider what effect upon

other states’ real property may have been intended with the

enactment of the statutory presumption. Texas does follow [18]

the usual rule that real property is exclusively subject to laws of

the sovereignty within whose territory it is situated, Erwin v.

Holliday, 131 Tex. 69, 112 S.W.2d 177 (1938). In the case of

Bell : Bell, 180 S.W.2d 466, 469 (Tex. Civ. App. 1944), it is

stated:

The status of lands, as to being separate or community, is

to be determined by the law of the state where they are

situated.

It may be supposed that the presumption is not intended to be

applied where, as here, it would alone be the basis for an

implied trust in Florida real property. To say so suggests that a

procedural device, without more, rises to the level of clear,

strong, unequivocal evidence necessary to show an implied

trust. Lofton v. Sterrett, supra.

The presumption, being a procedural device, need not be

applied by this court. Without the aid of this presumption,

appellant admittedly cannot substantiate any interest in the

consideration used to purchase the property, and it follows that

no interest could then be shown in the real property. For this

reason the appellees urge that summary judgment was properly

entered in their favor.

[20] Returning to the particular questions raised in the

beginning of this section, attention is now directed to the

following: how, or by what quality of evidence, can the

presumption be rebutted? Appellant would have this court

believe that the answer to this question is certain. The appellees

Al4

disagree. Turning once again to the work of Dean McCormick,

the authority on Texas law relied upon by appellees, the

following is noted:

Closely interwoven with the matter just discussed is the

degree of evidence required to overcome the presumption.

Here again there is conflict in the decisions. Frequently the

courts say the presumption can only be overcome by “clear

and convincing evidence.” The problem is partly statutory

in origin since one of the clauses of Article 4619 includes

the requirement of “satisfactory proof.” Based upon the

wording of the statute the Supreme Court has made what is

believed to be a questionable distinction between property

“acquired during the marriage” and property “possessed

upon dissolution of the marriage,” saying that as to the

former only a preponderance of evidence is required to

overcome the presumption of community. [Citing Page v.

Henderson, 129 Tex. 652, 106 S.W.2d 673 (Com. App.

1936)]. On the other hand there is authority to the effect

that the mere production of evidence of the separate

character of the property will destroy the presumption and

leave the burden of persuasion on the Party asserting that

[21] the property is community. [Citing Daggett v. W. B.

Worsham & Company, 264 S.W. 180 (Tex. Civ. App.

1924)]. McCormick and Ray, supra, §116.

In this same section above quoted, Dean McCormick also notes

the ‘settled rule that it is error to instruct the jury that any issue

requires proof greater than a preponderance of evidence,” citing

Sanders v. Harder, 148 Tex. 593, 227 S.W.2d 206 (1950). Thus,

though the Texas law is apparently not certain, it seems safe to

say that the community property presumption may be

overeome with less than “clear and convincing” evidence.

* * 7 + 7 7 *

[22] The Texas Supreme Court has set forth its view of a

rebutted presumption in the Robertson Tank Lines case, supra.

The effect of rebuttal is to make a presumption vanish, or as

more particularly stated:

...[in the face of positive rebuttal] the presumption is

nullified and the burden is then upon the plaintiff to

eS REE oe Bo Nn NE cl et, aN Neal ae aon eee ons ae ot

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produce other evidence or his cause fails. . .(emphasis the

court's). 468 S.W.2d at 358.

Moreover, the court in Robertson Tank Lines held that the facts

giving rise to the presumption, without additional affirmative

evidence, did not even constitute probative evidence of the

presumed conclusion. Id.

[23] This court is familiar with the related Florida rule that

when a rebuttable presumption is met with rebutting evidence,

the presumption vanishes and is of no probative value. See

Gulle v. Boggs, 174 So.2d 26 (Fla. 1965); Nationwide Mut. Ins.

Co. v. Griffin, 222 So.2d 754 (4th DCA Fla. 1969).

Appellees therefore argue that appellant has no basis for

her claim, even if the device of the Texas presumption should be

held applicable in this Florida forum. The result is that her claim

was properly denied on summary judgment because she has no

basis to substantiate it.

Ill

[31] APPELLANT IS BARRED BY LACHES FROM NOW

ASSERTING ANY CLAIM IN THE FLORIDA REAL

PROPERTY.

Another issue brought to the circuit court by the motions

for summary judgment was that of laches. The defendants there

argued that even if there should be some technical basis to now

give appellant an interest in the Florida property, then

nevertheless any claim based upon that interest must now be

barred under the equitable doctrine of laches.

Laches is a kind of negligence in failing to seasonably assert

rights, or allowing an unexcusable delay in the assertion of

rights during which time adverse rights to premises have been

acquired which make it inequitable to displace the adverse

rights. Equity will ordinarily deny relief to a complainant guilty

of laches. 21 Fla. Jur., Limitation of Actions, §§91 et seq. Often

a court will turn to statutory periods of limitation as an

appropriate guideline in determining a suitable period to define

laches. General Properties Company v. Rellim Investment

Al6

Company, 151 Fla. 136, 9 So. 2d 295 (1942). The appropriate

statutory period of limitation applicable to the case at bar is

found in §95.23, Florida Statutes, (1973) [now in the new

§95.231], providing in part:

After the lapse of twenty years from the record of any deed

.. .purporting to convey lands no person shall assert any

claim to said lands as against the claimants under such deed

..., or their successors in title.

[32] A cause of action very similar to that asserted by appellant

was barred by laches in the case of Wadlington v. Edwards, 92

So.2d 629 (Fla. 1957). In Wadlington, a widow asserted a

beneficial interest in land acquired by her husband in 1934. The

title was taken in the name of her husband alone, and the

widow alleged that the title was taken in her husband’s name

against her will and without her knowledge or consent. She

claimed that the purchase price was paid with funds from her

separate estate, thus giving rise to her equitable interest.

The Supreme Court in Wadlington first disposed of the

question of the kind of implied trust sought to be impressed

against the property. The Court found that what was at issue

was a “constructive” trust, and not a resulting trust. It should be

noted that under the guidelines there delineated, the appellant

can only be seeking application of the constructive trust

remedy. The essential difference of the two implied trusts is the

element of intent. A resulting trust depends upon the intent of

the parties, and it is essential that the intent to create the

claimed interest be found. On the other hand, a constructive

trust is but an equitable remedy, not a “trust” at all, which is

applied in spite of or contrary to the parties’ intent. 96 So.2d at

631.. The constructive trust is created to prevent unjust

enrichment, whether it arises from fraud, abuse of confidence,

or even from mistake. Jd. Nothing suggests that Watson Wise

intended for the appellee [33] to ever have any interest in the

property at issue. At the time the properties were purchased,

appellee Wise clearly understood and intended that they were

his father’s because they were purchased with his father’s funds.

(Watson depo. p. 17, 21/R 346, 350). Later, Watson's father

gave the properties to him and to his sister (Watson depo. p.

41/R 370), at which time the properties became a part of

Watson's separate properties. As acknowledged by appellant,

ee ee en a ee

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(Estabrook depo. p. 6/R 474), appellee Wise was accustomed to

having and maintaining certain properties as his sole properties .

throughout the marriage.

In Wadlington the Supreme Court went on to hold that

because a constructive trust has its inception in an antagonistic

relationship, any rights of the beneficiary accrued at one of the

following times: when the deed was recorded, when the

beneficiary knew of a potential right, or when the beneficiary

should have known of the adverse claim of the asserted trustee.

92 So.2d at 632.

The following facts are important in comparing Wadling-

ton and the instant case. The evidence shows that Watson Wise

purchased the properties in issue and in some cases recorded the

deeds therefor, in the period of about 1944-46 (Complaint, p.

3/Interrogatory to Watson No. 3(d)). Other evidence suggests

that the appellant had actual knowledge of her husband's

Florida transactions because she eventually recalled some of

them. In her own deposition, the appellant related several times

that [34] once her memory was jogged by the enticement of Mr.

Farrington’s proposal, she did indeed begin to piece together

recollections of her husband’s business, (Estabrook depo. p. 15,

43, 65/R 483, 511, 533). She was raised in the oil business,

(Estabrook depo. 4/R 472), and she knew that frequent travels

to secure mineral interests were a part of that business

(Estabrook depo. p. 15/R 483). Indeed, she knew that her father

and husband had business dealings together, (Estabrook depo.

at 12/R 480). It was stated by Mr. Edgar Turman that the

appellant told him “...that she recalled there had been some

trips over there and back [to Florida]. And she did recall that

during that time there was some business done in that area

[Florida], but that she was not aware of exact particulars... .”

(Turman depo. p. 35/R 464). Other facts in the case suggest that

appellant had actual knowledge of her husband's transactions

or should be imputed with such. As previously noted, not only

were deeds recorded in the transactions of public record for

decades, but also in some cases the appellant actually signed

subsequent deeds reflecting transactions in which her husband

transferred interests first acquired around 1945. (Estabrook

depo. p. 19-22/R 487-490).

The doctrine of laches is never applied as a bar by virtue of

nothing more than delay. Anderson v. Northrop, 30 Fla. 612,

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12 So. 318 (1892). It is said that an ad interim [35] third party

must act to his detriment in reliance upon such neglect, or that

the delay must operate to the disadvantage of this other party.

See Seaboard All Florida v. Underhill, 105 Fla. 409, 141 So. 306

(1932). Here we have defendant Phillips interposed as a third

party who reasonably relied upon the state of the record title of

these properties in Mr. Watson Wise.

A compelling equity may be found upon considering the

basic rationale for limitations upon actions. Namely, limita-

tions are designed to prevent undue delay in bringing suits on

claims and to suppress fraudulent and stale claims after

vouchers and evidence are lost and after facts have become

obscure from the lapse of time, defective memory, or the death

and removal of decisive witnesses.

It is a fact that here important evidence regarding the

character of this property is forever lost. Numerous important,

perhaps decisive witnesses are now dead. For example, among

the deceased are: William A. Wise, father of appellee Wise, and

one who would obviously be vital to establish the validity of

the claim that the funds came from the father (Watson depo.

11/R 340); Robert Windfohr, friend and confidant of Watson

who may have known of Watson's arrangements (Watson

depo. p. 33/R 362; Estabrook depo. p. 16/R 484); R. J. Ranck,

brother-in-law of Watson Wise, who not only knew of the

arrangements made by William A. Wise, but who also was

offered the very [36] same proposition which appellee Wise

acted upon (Watson depo. p. 19/R 37); and still more, such as

H. C. Milhoan (Watson depo. p. 19/R 348); Marry and Marry

(Watson depo. p. 28/R 357); E. L. Orr (Estabrook depo. p.

24/R 492); Bob Porterfield (Estabrook depo. p. 18/R 486); Mr.

McKelvey (Turman depo. p. 11/R 441), and other unnamed

office workers (Estabrook depo. p. 14/R 482).

The facts in this case as they relate to laches must also be

tied back to the stringent burden of proof needed to show an

implied trust. Illustrative is the Geter v. Simmons case, supra,

which denied a resulting trust, stating:

But again, in our view, the evidence adduced to establish

the alleged resulting trust in the complainant's favor, when

viewed under the shadows and obscurity cast by the long

lapse of time since the occurrences testified about, is not so

A19

clear, convincing, and free from reasonable doubt as to

justify a court of equity in disturbing the title to real estate.

49 So. at 134.

Thus here, as in Wadlington, appellant is barred by laches

from pressing this stale claim against Watson Wise’s property.

* * * +

EXCERPT FROM REPLY BRIEF OF APPELLEES IN THE

DISTRICT COURT OF APPEAL OF FLORIDA, FIRST

DISTRICT.

* * r «

[1] Statement of Additional Facts

The Appellee-Defendant, Watson W. Wise, filed an

amendment to his Answer and Additional Affirmative Defenses

(R 95-96) on August 26, 1975, and therein stated:

Sixth Affirmative Defense

That this action is barred by virtue of the final decree of

divorce entered in the Court of Domestic Relations in and

for Smith County, Texas, in that certain case bearing No.

64-480 in which Louise Orr Wise, now Louise Orr

Estabrook, was the plaintiff and Watson W. Wise,

defendant, copy of which final judgment is attached

hereto, marked Exhibit “A” and by this reference made a

part hereof.

The plaintiff filed her Reply to the above quoted

Affirmative Defenses (R 99) on September 29, 1975 and, did not

plead the applicability or the substance of Texas law as to this

defense. At the pre-trial conference on November 10, 1975, it

being stipulated that motions for summary judgment previously

filed would be heard at that time, neither Texas law nor the

applicability thereof were argued or in any way presented to the

Court, or introduced as being applicable in this issue. The

Court below correctly applied Florida law and entered its Final

Summary Judgment (R 264) in favor of all defendants.

In Appellant's main brief filed herein, Appellant does not

at any time raise any suggestion that Texas law would apply to

A20

this issue. In fact, for the first time in Appellant's Reply Brief,

she tries to raise the issue of the applicability of Texas law to

determine whether she is barred from bringing this [2] action to

determine the title to Florida real property by the prior final

judgment of divorce.

ARGUMENT

I. TEXAS LAW IS NOT APPLICABLE BECAUSE

IT WAS NOT RAISED AT THE TRIAL COURT.

It has long been established in Florida that there are

limitations placed upon the appellant in points which may be

raised on appeal. As stated by the Supreme Court in Hartford

Fire Ins. Co. v. Hollis, Fla. 1909, 50 So. 985, at page 989:

“(1) It is the policy of this Court to confine the

parties litigant to the points raised and determined in the

court below, and not to permit the presentation of points,

grounds, or objections for the first time in this Court when

the same might have been cured or obviated by

amendment if attention had been called to them in the trial

court.”

The purpose of our entire appellate structure is to correct

errors of law made by the court below. It is not for the purpose

of providing the attorneys an opportunity to re-evaluate their

case and seek new and different theories of law upon which

their case may be presented.

It is also a well established rule in Florida that if a litigant is

to rely upon a law of a foreign state, he must both plead and

prove that law at the lower court level. As stated in United

Mercantile Agencies v. Bissonnette, Fla. 1944, 19 So.2d 466, at

page 467:

[3] “Though Section 1 of Article 4 of the Federal Constitution

requires that full faith and credit shall be given in each state

to the judicial proceedings of any other state, the

constitutional mandate entails no obligation upon the

courts of justice of sister states to judicially know the law

of any other state governing the effect of the judgment in

controversy. Questions of presumptions or judicial notice

ee eae

‘ A21

are always for the law of the forum. The courts of the

forum not being judicially charged with knowledge and

hence not bound to take judicial notice of the laws of other

states, such foreign laws must be pleaded and proved as

ultimate facts insofar as it may be necessary to establish the

validity of the judgment in the state where rendered.”

(Emphasis supplied.)

One cannot rely on the law of a foreign state and expect the

courts of this state to follow that law unless they are advised

beforehand as to what that law is and why it would be

applicable. In order for the applicability of foreign law to be

raised as an issue on appeal, the question of foreign law must

have been raised at the trial court below. Miller v. Shulman, 3

DCA 1960, 122 So.2d 890, states this very simply and

succinctly at page 590: “the absence from the record of both

pleading and proof of foreign law precludes our consideration

of this contention raised for the first time in appellant's brief.”

See also Brotherhoods Relief & Compensation Fund uv.

Cagnina, 2 DCA 1963, 155 So.2d 820; Jorge v. Rosen, 3 DCA

1968, 208 So.2d 644; Movieland, Inc. v. Davis, 3 DCA 1969,

217 So.2d 890. Therefore, the question raised on appeal about

the applicability of Texas law on the res judicata effect of the

final decree of divorce is totally improper and should not be

considered by this Court inasmuch as it was never raised at the

lower court level.