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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1991

## Text

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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.

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