Opposition Brief — Latimer v. Stainer, 112 S. Ct. 186 (1991) (No. 91-148)

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IN THE UNITED STATES SUPREME COURT

OCTOBER, 1991 TERM

EMILY L. LATIMER, Petitioner

Vv.

KENNETH L. STAINER, Respondent

C22 399

NO. 91-148 » OFFER OF The Cl

Court, US.

Ls DB

BRIEF IN OPPOSITION TO

PETITION FOR WRIT

OF CERTIORARI

David A. Carpenter

Attorney at Law

4157 South Harvard, Suite

Tulsa, Oklahoma 74135

(918) 749-0050

ATTORNEY FOR REPSONDENT

125

Il.

QUESTIONS PRESENTED

Whether the Petitioner waived her rights

to trial by jury before the United

States Bankruptcy Court by not demanding

same in writing.

Whether a conflict exists among the

Circuits regarding the effect of failure

to demand jury trial in the United

States Bankruptcy Court timely and in

writing.

TABLE OF CONTENTS

QUESTIONS PRESENTED

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATUTES AND RULES INVOLVED

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

ARGUMENT AND AUTHORITIES

CONCLUSION

CERTIFICATE OF SERVICE

ii

TABLE OF AUTHORITIES

DECISIONAL AUTHORITY

Gasifier Mfg. Co. v. General

Motors Corp., 138 F.2d 197

fea Gals Beene «5 Se ewe 6 te ee +

Gulbenkian v Gulbenkian,

147 F.2d 173, 158 A.L.R. 990

tae Cer. Beer « «6 4 el ee eee ;

Jones v. Birdsong, 679 F.2d 24

(Se Cae Rens oe ee ee ee eee ee

Littlefield v. Ft. Dodge Messenger,

614 F.2d 581 (8th Cir. 1980),

cert. den 445 U.S. 945, 63 L.Ed.2d

77a, 200 G.Ce. 236482 «© 0 ew 0 ee e+e + th

Murphy v. Shelby, 353 F.2d 418

CS tes ee a Se ee oy

United States v. Moore, 2340 U.S. 616,

95 L.Ed. $82, 7i &.Ce. 524 (1951),

reh den 341 U.S. 923, 95 L.Ed. 1356,

7a 8. CE. FEC se. ee dee a 6 0 se = & &

Wilson v. Corning Glass Works,

195 F.26 825 (9th Cir. 1952) .°. .«.d¢->

RULES OF COURT

Foag.R.Bank.?. 9039 .+«+6+s=+s#*» « «> @ By

Ped. E. Cavs. 3B vo) aes te ee a eee

iii

STATUTES OR RULES INVOLVED

Fed.R.Civ.P. 38(b) and (d).

JURY TRIAL OF RIGHT

(b) DEMAND. Any party may demand a

trial by jury of any issue triable of right

by a jury by serving upon the other parties

a demand therefor in writing at any time

after the commencement of the action and not

later than 10 days after the service of the

last pleading directed to such issue. Such

demand’ way be indorsed upon a pleading of the

party.

(ad) WAIVER. The failure of a party to

serve a demand as required by this rule and

to file it as required by Rule _ 5(d)

constitutes a waiver by the party of trial by

jury. A demand for trial by jury made as

herein provided may not be withdrawn without

the consent of the parties.

iv

Fed.R.Bank.P. 9015 (abrogated March 30, 1987)

(a) Trial by Jury. Issues triable of right

by jury shall, if timely demanded, be by

jury, unless the parties or their attorneys

of record, by written stipulation filed with

the court or by an oral stipulation made in

open court and entered in the record, consent

to trial by the court sitting without a jury.

(b) Demand.

(1) Time; Form. Any party may demand a

trial by jury of any issue triable by a jury

by serving on the other parties a demand

therefor in writing not later than 10 days

after service of the last pleading directed

to such issue. The demand may be indorsed on

a pleading of the party. When a jury trial

is demanded it shall be designated by the

clerk in the docket as a jury matter.

(2) Specification of Issues. In his

demand a party may specify the issues which

he wishes so tried; otherwise he shall be

_

deemed to have demanded trial by jury of all

the issues so triable. If he has demanded

trial by jury of only some of the issues, any

other party within 10 days after service of

the demand or such lesser time as the court

may order, may serve a demand for trial by

jury of any other or all of the issues. ;

(3) Determination by Court. On motion

or on its own initiative the court may

determine whether there is a right to trial

by jury of the issues for which a jury trial

is demanded or whether a demand for trial by

jury in a proceeding on a contested petition

shall be granted.

(c) Waiver. The failure of a party to serve

a demand as required by this rule and to file

it as required by Rule 5005 constitutes a

waiver of trial by jury. A demand for trial

by jury made as herein provided may not be

withdrawn without the consent of the parties.

(ad) Trial by the Court. Issues not demanded

for trial by jury shall be tried by the

vi

———< LU

court. Notwithstanding the failure of a party

to demand a jury when such a demand might

have been made of right, the court on its own

initiative may order a trial by jury of any

or all issues.

(e) Advisory Jury and Trial By Consent. In

all actions not triable of right by jury the

court on motion or on its own initiative may

try and issue with an advisory jury or,

except in actions against the United States

when a statute of the United States provides

for trial without a jury, the court, with the

consent of both parties, may order a trial

with a jury whose verdict has the same effect

as if trial by jury had been a matter of

right.

(f) Applicability of Certain of the Federal

Rules of Civil Procedure. Rules 47-51 of

F.R.Civ.P. apply when a jury trial is

conducted.

Vii

STATEMENT OF THE CASE

The Debtor, Caesar C. Latimer, filed a

voluntary Chapter 7 petition with the United

States Bankruptcy Court for the Northern

District of Oklahoma on October 5, 1985,

seeking relief from his creditors.

In May of 1985, the Debtor conveyed

numerous parcels of real property to his

wife, the Petitioner, Emily L. Latimer, both

in her individual right and, ostensibly, in

trust for the benefit of the said Emily L.

Latimer and the Debtor’s mother, Maria L.

Latimer.

The Chapter 7 14Bankruptcy Trustee,

Kenneth L. Stainer, respondent herein,

commenced an adversary proceeding in the

United States Bankruptcy Court for the

Northern District of Oklahoma on May 7, 1987,

denominated Case Number 87-0055-C, for

recovery from the Petitioner, some seven

parcels which had been conveyed to her by her

vill

husband in May of 1985, as above described.

Shortly following the filing of the

adversary Complaint, the Trustee learned that

immediately prior to commencement '- such

adversary proceeding, Emily L. Latimer had

conveyed several of the parcels of the

property above mentioned to various family

members of the Debtor. Upon motion, the

Respondent sought leave to join such family

members as additional parties Defendant,

which request was granted by the Bankruptcy

Court. Counsel for Emily L. Latimer, in open

court, entered his general appearance on

behalf of all such additional parties

Defendant.

No written request for jury trial was

ever filed by the Petitioner or any other

additional party Defendant.

Trial was conducted in such adversary

proceeding on April 11, 1988, with the

Bankruptcy Judge, Honorable Stephen J. Covey,

finding from the evidence that the Debtor had

ix

a

———— i

conveyed all the subject parcels of real

property to his wife, Emily L. Latimer,

petitioner, and she to the other Defendants,

fraudulently with respect to the creditors of

the Debtor. The Bankruptcy Court further

found that no consideration was received for

such transfers and that the Respondent was

able to avoid such transfers and recover for

the estate, for the benefit of the

Creditors, all parcels of real property

conveyed by the Debtor in May of 1985. The

Defendants below appealed first to the United

States District Court for the Northern

District of Oklahoma, Honorable Thomas R.

Brett presiding, and thereafter to the United

States Court of Appeals for the Tenth

Circuit. In both instances, the decision and

judgement of the tribunal appealed from were,

in all respects, affirmed. A copy of the Per

Curiam opinion of the United States Court of

Appeals for the Tenth Circuit, and the Order

of the United States Bankruptcy Court for the

VL

Northern District of Oklahoma (affirming the

Bankruptcy Court judge) are appended to the

Petition for Certiorari by the Petitioner

herein.

Of the Defendants to the Bankruptcy

Court adversary proceeding, only Emily L.

Latimer now seeks review by way of certiorari

before this Court. A Petition for a Writ of

Certiorari to the United States Court of

Appeals for the Tenth Circuit was filed by

the Petitioner, Emily L. Latimer, by and

through her attorney, Caesar C. Latimer, who

was coincidentally, the Debtor before the

United States Bankruptcy Court, and from

whose Chapter 7 Bankruptcy case this Petition

for Certiorari directly arises.

x1

ae earned

Fe yO” Ue Fre Ce ae

SUMMARY OF ARGUMENT

ZB. The Petitioner waived her rights to jury

trial by not following appropriate procedures

to protect a right to jury trial.

II. There is no conflict among the Circuits

as to the effect of waiver of right to jury

trial by failure to timely demand the same in

writing.

Xil

ARGUMENTS AND AUTHORITIES

I.

THE SINGLE ISSUE BEFORE THIS COURT

ON CERTIORARI IS WHETHER THE

PETITIONER WAIVED HER RIGHTS TO

JURY TRIAL BY NOT FOLLOWING

APPROPRIATE PROCEDURES TO PROTECT

A RIGHT TO JURY TRIAL.

Notwithstanding the obfuscation engaged

in by Petitioner, the sole issue before this

Court is whether, assuming Petitioner had a

right to trial by jury on the _ issues

presented to the Bankruptcy Court, she

nonetheless waived those rights by failure to

properly demand jury trial in writing, as

prescribed by the Federal Rules of Civil

Procedure.

It is uncontested that the Petitioner

failed to make a written request of any sort

for trial by jury before the United States

Bankruptcy Court for the Northern District of

Oklahoma. The only such request by the

Petitioner was made orally at the pre-trial

conference, held by Honorable Stephen J.

Covey, the trial judge in the Bankruptcy

Court.

There has never been a written demand

for trial by jury filed in any of the

proceedings leading up to this request for

review by the Petitioner. Further, although

not properly reviewable by this Court as

having never been submitted to any prior

tribunal (either for trial purposes or on

appeal), the Plea in Abatement, mis-named

Plea in Statement in the Appendix

accompanying the Petition for review before

this Court, fails to make request for jury

trial.

The issue before the Court in this

matter is not whether bankruptcy courts

generally have the power to conduct jury

trials, as is suggested by the Petitioner,

but rather, whether the Petitioner failed to

preserve what rights to jury trial she had by

failing to make proper demand for jury trial

in accordance with Federal Rule of Bankruptcy

Procedure 9015 (abrogated March 30, 1987) and

Fed.R.Civ.P. 38(b).

This Court has long ago determined any

right to jury trial is waived where no demand

for such trial has been made as required by

Fed.R.Civ.P. 38(b). See, United States v.

Moore, 340 U.S. 616, 95 L.Ed. 582, 71 S.Ct.

524 (1951), reh den 341 U.S. 923, 95 L.Ed.

1356, 71 S.Ct. 740.

Petitioner further suggests that if a

Waiver of her rights for trial by jury

occurred, such was occasioned by inadvertence

and was not a "knowing" act of the Petitioner

or her counsel.

This issue is without merit, as courts

have uniformly held that the right to jury

trial is waived by inaction, even though such

inaction is due to ignorance of the

provisions of Fed.R.Civ.P. 38. See, Wilson

v. Corning Glass Works, 195 F.2d 825 (9th

Cir. 1952), Gulbenkian v Gulbenkian, 147 F.2d

173, 158 A.L.R. 990 (2nd Cir. 1945).

A case is properly tried by the Court as

a “jury-waived" case where the record does

not show there was any demand for jury trial

in compliance with Fed.R.Civ.P. 38(b). See,

Gasifier Mfg. Co. v. General Motors Corp.,

138 F.2d 197, (8th Cir. 1943), Murphy v.

Shelby, 353 F.2d 418 (8th Cir. 1965).

The Petitioner may not argue on appeal

that the trial court improperly denied her

the right to trial by jury, as to claims

properly triable to a jury, where she never

served a written demand for trial by jury as

required by Fed.R.Civ.P. 38(b). See, Jones v.

Birdsong, 679 F.2d 24 (5th Cir. 1982). Ifa

petitioner does not make written demand for

jury trial as required by Rule 38(b), such

inaction constitutes waiver of trial by jury.

See, Littlefield v. Ft. Dodge Messenger, 614

F.2d 581 (8th Cir. 1980), cert. den 445 U.S.

945, 63 L.Ed.2d 779, 100 S.Ct. 1342.

Thus, it is abundantly clear that this

Court is not called upon to review the issue

of whether a jury trial may be conducted by

a bankruptcy court, a non-Article III

tribunal, but rather, whether the Petitioner,

by failing to serve written demand for trial

by jury as required by the applicable Federal

Rule of Civil Procedure and the now abrogated

Bankruptcy Rule (Rule 9015), waived whatever

rights to trial by jury she may have had with

respect to the adversary proceeding initiated

by the bankruptcy trustee for avoidance of

the fraudulent conveyances.

Il.

THERE IS NO CONFLICT AMONG THE

CIRCUITS AS TO THE EFFECT OF WAIVER

OF RIGHT TO JURY TRIAL BY FAILURE

TO TIMELY DEMAND THE SAME _ IN

WRITING.

The Petitioner attempts to further bootstrap

her inadequate petition for review before

this Court by attempting to establish that a

conflict exists among the circuits regarding

the power of a bankruptcy court to conduct

trial by jury.

This non-issue is a smokescreen and

blind on the part of ts Petitioner. Whether

or not such conflict exists, it need not be

decided by this Court in this matter, for the

reason that the Petitioner waived whatever

rights she may have had to jury trial by

failure to demand the same in writing timely.

The speculation found in page fourteen

of the Petition for Writ of Certiorari before

this Court (that the result might have

changed had this action been initiated within

the geographical confines of the Second

Circuit) is specious, as the Second Circuit

has previously held that waiver of right to

jury trial occurs when litigants fail to

properly perfect such right by timely

written demand therefor. See, Gulbenkian v.

Gulbenkian, supra.

This Court need not decide any conflict

among the circuits to adequately dispose of

the matter presently before it.

tear

CONCLUSION

The Petition for Writ of Certiorari

should be denied. The Petitioner waived her

rights to trial by jury by failure to avail

herself of the clear provisions set forth in

Fed.R.Civ. P 38(b) and Bankruptcy Rule 9015

(abrogated).

There is no conflict among the circuits

regarding the effect of waiver to demand jury

trial properly.

No justifiable reason has been advanced

by the petitioner as to why this Court

should undertake further review of this

matter.

Respectfully submitted,

baed A hepa

David A. Carpenté:

4157 South carve. Suite 125

Tulsa, Oklahoma 74135

(918) 749-0050

ATTORNEY FOR RESPONDENT

CERTIFICATE OF SERVICE

I, David A. Carpenter, do certify that

on the 21st day of August 1991, I caused to

be served upon the below named persons, three

copies each of the foregoing Brief in

Opposition to Petition for Writ of

Certiorari:

James O. Goodwin

624 East Archer

P.O. Box 3267

Tulsa, OK 74101

Caesar C. Latimer

2611 North St. Lewis

Tulsa, OK 74106

David A.