Opposition Brief — Gregory v. Drury

No. 86-1673 \?.

IN THE

Supreme Court of Che United States

CHRISTOPHER GREGORY,

Petitioner,

Ms

THOMAS J. Drury, et al.,

1

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION

TO CHRISTOPHER GREGORY’S PETITION

FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Harry J. SCHULZ* J. G. ADAMI, JR.*

Schulz & Schulz Perkins, Oden, Warburton,

P.O. Box 580 McNeill & Adami

Three Rivers, Texas 78071 P.O. Box 331

(512) 786-2545 Alice, Texas 78333

Attorneys for Respondent (512) 668-8101

Thomas J. Drury Attorneys for Respondents

Bruno R. Goldapp, Elena S.

*

“gi Kenedy, Kenneth Oden and

1010 United Bank Tower The Alice National Bank

Austin, Texas 78701

(512) 474-1156

Attorneys for Respondent

Lee H. Lytton, Jr.

*Counsel of Record

June 15, 1987

i

COUNTER-STATEMENT OF THE

QUESTIONS PRESENTED

1. In accordance with 28 U.S.C. § 1738, the Federal courts

must give preclusive effect to a prior state court judgment where

the new claim asserted under 42 U.S.C. § 1983 in a subsequent

action between the same parties and requesting the same relief is

entirely grounded upon and based upon the identical facts and

issues which have already been asserted and fully adjudicated in

prior state court actions and appeals from such state court actions

to the United States Supreme Court.’ (In reply to Petitioner’s

Questions | and 2)

2. There is no conflict in the decisions of the Fifth Circuit

Court of Appeals and those decisions of the Seventh and Tenth

Circuit Court of Appeals in their claim preclusion application

under 28 U.S.C. § 1738 and 42 U.S.C. § 1983 to prior state court

judgments. (In reply to Petitioner’s Question 3)

' The factual basis and the issues raised by Petitioner, Gregory, in his

action under 42 U.S.C. § 1983 have heretofore been presented to this

court in No. 80-1677 in the United States Supreme Court, October

term, 1980, styled Christopher Gregory v. Mark White, Attorney

General of the State of Texas, et al. See Respondents’ Joint Appendi-

ces, Appendix N, page 11 4a.

—

ii

PARTIES IN THE COURT OF APPEALS

The parties in the Fifth Circuit Court of Appeals were the

Petitioner, Christopher Gregory, and the Respondents, Thomas J.

Drury, Bruno R. Goldapp, Elena S. Kenedy, Lee H. Lytton, Jr.,

Kenneth Oden, Mark White as Attorney General of the State of

Texas, and The Alice National Bank.

Pursuant to Petitioner’s Motion for Leave to File a Second

Amended Complaint, which was never acted on by the United

States District Court for the Southern District of Texas, Peti-

tioner sought to update his Amended Complaint by naming as

defendants the then current member of the John G. and Marie

Stella Kenedy Memorial Foundation, Rene H. Gracida, Lee H.

Lytton, Jr., E. B. Groner, Daniel Meaney and Sister Bernard

Marie Borgmeyer, by substituting the then current Attorney

General of the State of Texas, Jim Mattox, and retaining The

Alice National Bank, Kenneth Oden and Thomas J. Drury as

defendants.

ill

TABLE OF CONTENTS

COUNTER-STATEMENT OF QUESTIONS PRESENTED

PARTIES IN THE COURT OF APPEALS. ..............

ee ed 45 5 od dees eae ienscess

pg.

RE ee

COUNTER-STATEMENT OF THE CASE

EE ee

History of Proceedings and Disposition in Court Below ....

Ee ee

REASONS FOR DENIAL OF THE WRIT..............

a.

In accordance with 28 U.S.C. § 1738, the Federal courts

must give preclusive effect to a prior state court judgment

where the new claim asserted under 42 U.S.C § 1983 ina

subsequent action between the same parties and requesting

the same relief is entire!y grounded upon and based upon the

identical facts and issues which have already been asserted

and fully adjudicated in prior state court actions and appeals

from such state court actions to the United States Supreme

Ea yell Ae is i ns ea ene narra ae

There is no conflict in the decisions of the Fifth Circuit

Court of Appeals and those decisions of the Seventh and

Tenth Circuit Court of Appeals in their claim preclusion

application under 28 U.S.C § 1738 and 42 U.S.C § 1983 to

Ce ee

on kein ss 6x eee wn nw oa cele rhe ee Seen

14

24

29

eT

iV

TABLE OF AUTHORITIES

Cases

Page

Abbott Laboratories v. Gravis, 470 S.W.2d 639, 642 (Tex.

oe | Gere Pre rr rrer, fey. rer ere 15

Allen v. McCurry, 449 U.S. 90, 101 S. Ct. 411, 66 L.Ed. 2d 308

Ns ini nist bh kee he AM Aen ees Oks 14, 16, 23, 25

American Indemnity Company v. Fellbaum, 263 S.W. 908

8 Be PO Ore heer OP er ET eee error rer 17

Arnoff v. Texas Turnpike Authority, 299 S.W.2d 342

(Tex. Civ. App., Dallas, 1957, no writ hist.) ............. 20

Atlantic Coast Line Railroad Company v. Brotherhood of

Locomotive Engineers, 398 U.S. 281, 26 L.Ed. 2d 234, 90

3° O). 2... Spee pe aon oe ere 4

Battieste v. Baton Rouge, 732 F.2d 439 (Sth Cir., 1984) ..... 24

Boileau v. Bethlehem Steel Corp., 730 F.2d 929 (3rd Cir.,

Pe RD Rap ey ag gm CAE GP RA 26

Bonniwell v. Beech Aircraft-Corporation, 663 S.W.2d 816

i. BN Rr ror errr er rere rr yrs 16

Cavers v. Sioux Oil and Refining Co., 39 S.W.2d 862

ey ES re ee rt re ey ee 17

Childs v. Reunion Bank, 587 S.W.2d 466 (Tex. Civ. App.,

oe, ee NS er rere ae 20

District of Columbia Court of Appeals v. Feldman, 460 U.S.

462, 103 S. Ct. 1303, 75 L.Ed. 2d 206 (1983) ........... 4

Downtown v. Vandemark, 571 F.Supp. 40 (N.D. Ohio, 1983) 24

Flores v. Edinburg Consolidated I.S.D., 741 F.2d 773 :

SE MEE De aaa sao sake nae coed oe ee ees 17, 18, 21, 24

Franklin v. Rainey, 556 S.W.2d 583 (Tex. Civ. App., Dallas,

De Cia Pe eg Use ea es wena pa eas 16

Fuentes ¥. Shevin, 407 U.S. G7 CIGTZ) .. occ ce cens 20

Gilbert v. Fireside Enterprises, Inc., 611 S.W.2d 869 (Tex.

ty RS RSD a er gery ene oe 17

Gregory v. Lytton, 422 S.W.2d 586 (Tex. Civ. App., San

es pee ee Oe, PD i ccc a canes ken sca seeds 7,9

Page

Gregory v. White, 604 S.W.2d 402 (Tex. Civ. App., San

Antonio, 1980, writ ref. n.r.e.); petition for cert. denied, 452

oe 2) rey eee yer 2, 7, 8, 9, 10, 11, 12, 13, 18

Hernandez v. Light Pub. Co., 245 S.W.2d 553 (Tex. Civ.

Age, Gan Rabanle, TOFR, WH OO.) oo onic ckcsenvncsess 20

Hicks v. Quaker Oats Company, 662 F.2d 1158 (Sth Cir.,

ES hid ck aces vied eda eee ae ee hae as 16

Holmes v. Jones, 738 F.2d 711 (Sth Cir., 1984) ............. 16, 21

Hudspeth v. Hudspeth, 673 S.W.2d 248 (Tex. Civ. App., San

Ammen, Ti ee oa a os Cea oa edna 16

Huddleston v. Western National Bank, 577 S.W.2d 778 (Tex.

Civ. App., Amarillo, 1979, writ ref. n.re.) ............... 20

lacapondi v. New Amsterdam Cas. Co., 258 F.Supp. 880,

D.C. Pa., 1966, aff'd 379 F.2d 311; cert. denied in 88 S.Ct.

OUR, SOP UU. TO, FF Ee, BO GRD oo occ kn cesccscss 19

Jones v. City of Alton, Illinois, 757 F.2d 878 (7th Cir.,

| ry re rn rey ee Rene ee 26

Kremer v. Chemical Construction Corporation, 456 U.S. 461;

102 S. Ct. 1883, 72 L.Ed. 2d 262 (1982) .......... 14, 23, 25, 27

Lawlor v. National Screen Corp., 349 U.S. 322 (1955) ...... 24

Lebman v. Sullivan, 198 S.W.2d 280 (Tex. Civ. App., San

Aadaain., 1008; CN WE. GSES ook cc vc ecddaacweocuecaars 20

Marrese v. American Academy of Orthopedic Surgeons, 470

U.S. 373, 105 S. Ct. 1327, 84 L.Ed. 2d 274, (1985) ...... 14

Migra v. Warren City School District of Education, 465 U.S. 75,

106 S. Ch; GRE, FP LEG FO GIMGD oa vc cnc ncvtesics 14, 23, 25

Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970

COPD dd acs's'a nb badd ta es hee oe 16

Morgan v. City of Rawlins, 792 F.2d 975 (10th Cir., 1986) .. 25

Norco Construction, Inc. v. King County, 801 F.2d 1143 (9th

GAR BE eeta- wand Sebko caer iednir ri ceueeennies 24

Parsons Steel v. First Alabama Bank, 106 S.Ct. 768, 88 L.Ed.

yg SS SR Eiri tral depict eke game 15

Public Citizen v. Lockheed Aircraft Corporation, 565 F.2d 708

iF coll 7 Pea pe ie ely Ou ee irae FRC ee serge 3

Ramsey v. Dunlop, 205 S.W.2d 979 (Tex. S. Ct., 1947) ..... 20

Page

Richardson vy. Raby, 376 S.W.2d 422 (Tex. Civ. App., Tyler,

SE ED cmc becgnevaccuneeusWks cauceveiins 20

Scoggins v. State of Kansas, 802 F.2d 1289 (10th Cir., 1986) 25

Stevenson v. International Paper Company, 516 F.2d 103 (Sth

Gal, SOE ok Casecedawons deaeeavawsneseapessewesiaes 15

Thournir v. Meyer, 803 F.2d 1093 (10th Cir., 1986) ........ 26

Trevino v. Turcotte, 564 S.W.2d 682 (Tex. Civ. App., 1978) 7

Wasoff v. American Automobile Insurance Company, 451

ie Fe Cy MENA Wane ae oe EAGd ih cass ines 15

Wooten v. Dallas Hunting & Fishing Club, Inc., 427 S.W.2d

344 (Tex. Civ. App., Dallas, 1968, no writ hist.) ......... 19, 20

Constitutional Provisions and Statutes

’ Texas Constitution, Article 1, § 15, V.A.T.S. .............. 19

Texas Constitution, Article V, § 10, V.A.T.S. .............. 19

United States Constitution, Article 1, §2.................. 26

United States Constitution, Article os Pe ea 23

United States Constitution, Amendment 1................. 26

United States Constitution, Amendment V ................ 4

United States Constitution, Amendment XIV .............. 4, 26

United States Constitution, Full Faith & Credit Clause ...... 22

28 U.S.C. § 1738, Federal Full Faith and

Gee CN oo. i wwe o's oad ea een eee tos vue ee 13, 14, 22

a rrr yr er rer erry et 14, 23, 24, 25, 27

42 U.S.C. § 198%...... 3, 4, 13, 14, 17, 18, 21, 22 23, 24, 25, 26, 27, 28

Other Authorities

Rule 216 et seq., Texas Rules of Civil Procedure ........... 19

ee eee ee SOD ek bi cases wedaviedeenseeeee 3

eh Ges Gs ROOD 6-0. 0c kas ane bene eA ee ee 3

i rrr rrr eee ere ep e 3

No. 86-1673

IN THE

Supreme Court of Che United States

CHRISTOPHER GREGORY,

Petitioner,

Vv.

THOMAS J. Drury, et ai.

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION

TO CHRISTOPHER GREGORY’S PETITION

FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Thomas J. Drury, Lee H. Lytton, Jr., Elena S. Kenedy, Bruno

R. Goldapp, Kenneth Oden and The Alice National Bank,

Respondents, file this, their Joint Brief in Opposition to Christo-

pher Gregory’s Petition for Writ of Certiorari in this case.

OPINION BELOW

The opinion of the United States Court of Appeals for the Fifth

Circuit entered on January 27, 1987 is not yet officially reported

and is reprinted in Appendix A.”

? Respondents’ Joint Appendices to Respondents’ Joint Brief in Opposi-

tion will be cited as, for example, “Resp.s’ App. A-la”. The letter

designates the particular Appendix and the number refers to the

particular page of the Appendices.

2

The unreported judgment of the United States District Court

for the Southern District of Texas, entered on January 24, 1986,

was without opinion and is reprinted in Appendix B.

This Court’s denial of a petition for writ of certiorari from a

judgment of the Supreme Court of Texas in the prior state court

action is reported at 452 U.S. 939 (1981), as shown in Appen-

dix O. The judgment of the Court of Civil Appeals of Texas in

the prior state court action is reported at 604 S.W.2d 402 (Tex.

Civ. App.-San Antonio 1980, writ ref. n.r.e.), and is reprinted in

Appendix K. The final judgment entered in the prior state court

action by the 79th Judicial District Court of Jim Wells County,

Texas, on November 28, 1979 was unreported and is reprinted in

Appendix I. The interlocutory judgment entered in the prior state

court action by the 79th Judicial District Court of Jim Wells

County, Texas, on September 1, 1964 was unreported and is

reprinted in Appendix C.

COUNTER-STATEMENT OF THE CASE

PRELIMINARY STATEMENT?

Petitioner in this Federal action in truth and in fact is not

invoking 42 U.S.C. § 1983 for its intended purpose of protecting

people from unconstitutional actiori under color of state law, but

to relitigate the very same matters he raised or could have raised

in the state court. Having litigated these same matters in the

state trial court, the intermediate Court of Civil Appeals and the

Texas Supreme Court and then finally the U.S. Supreme Court

by Petition for Writ of Certiorari (represented by the same

attorneys he has in this Federal action), Gregory now again seeks

to relitigate the same issues and matters. In effect, he is seeking a

direct appeal to a United States District Court to review a final

judgment of the Courts of Texas.

3 Petitioner Gregory in his Appellent’s Brief filed in the Sth Circuit

Court of Appeals in Footnote 3 on page 4 stated: “The Appellees

moved under Fed. R. Civ. P. 12(b) to dismiss the Complaint on the

grounds that: (1) it failed to state a claim for relief; (2) the action was

barred by the statute of limitations; and (3) the action was precluded

by res judicata and collateral estoppel. (R.E. 7-10). With respect to

the second and third grounds, matters outside the pleadings were

presented to and not excluded by the District Court. Under Fed. R.

Civ. P. 12(c), the Appellees’ motions should have been treated as

motions for summary judgment under Fed. R. Civ. P. 56. See Public

Citizen v. Lockheed Aircraft Corporation, 565 F.2d 708, 711 n.5 (D.C.

Cir. 1977). Accordingly, in his Statement of Facts, Gregory will refer

to matters of record outside the pleadings.”

The Court of Appeals in Footnote | of its opinion also noted that “All

parties here and below have referred to matters extrinsic to the

complaint. They were also considered by the District Court in its grant

of a motion to dismiss.” The Court of Appeals also noted; “We could,

with equal confidence, treat the ruling below as a grant of summary

judgment.”

In view of the above prior position of Gregory and the findings and

ruling of the Fifth Circuit, he is now in no position to limit any

consideration to a dismissal under Fed. R. Civ. P. 12(b), especially

when he seeks to bolster his position by references to newspaper

articles. These matters are not a part of the record of this case, and

should not be considered for any purpose by this Court. Accordingly,

Respondents do not make reference to extraneous articles which are

supportative of Respondents’ position.

4

The United States Supreme Court in District of Columbia

Court of Appeals v. Feldman, 460 U.S. 462, 103 S. Ct. 1303, 75

L.Ed. 2d 206 (1983), stated: “As we have noted, supra, at 476,

75 L.Ed. 2d, at 218, a United States District Court has no

authority to review final judgments of the state court in judicial

proceedings. Review of such judgment may be had only in this

Court.” (p.222)

The Supreme Court in Feldman in Footnote 16 of its opinion

explained:

As we noted in Atlantic Coast Line Railroad Company v.

Brotherhood of Engineers, 398 U.S. 281, 26 L.Ed.2d 234, 90

S. Ct. 1739 (1970), “lower federal courts possess no power

whatever to sit in direct review of state court decisions.” Id.,

at 296, 26 L.Ed.2d 234, 90 S. Ct. 1739.

Moreover, the fact that we may not have jurisdiction to

review a final state-court judgment because of a petitioner’s

failure to raise his constitutional claims in state court does

not mean that a United States District Court should have

jurisdiction over the claims.

HISTORY OF PROCEEDINGS AND DISPOSITION

IN COURT BELOW

On September 21, 1981, the Petitioner, Christopher Gregory

(“Gregory”’), filed this action in the United States District Court

for the Western District of Texas. Gregory named as Defendants

the then members of the Kenedy Memorial Foundation, Elena S.

Kenedy, Bruno O. Goldapp, Kenneth Oden, Lee H. Lytton, Jr.,

and Bishop Thomas J. Drury, and also named as Defendants were

the then Attorney General of the State of Texas and the Alice

National Bank. In his Complaint, Gregory alleged that the

Respondents and others successfully combined and conspired to

deprive him of his rights to trial and trial by jury in violation of

the Fifth and Fourteenth Amendments to the United States

Constitution, U.S. Const. Amend. V and XIV, and 42 U.S.C.

§ 1983.

5

On October 14, 1981, the Texas Attorney General filed his

Original Answer and Motion for Judgment on the Pleadings, in

which he sought dismissal of the Complaint on the grounds of res

judicata and failure to state a claim for relief. Respondent, Lee

H. Lytton, Jr., (“Lytton’’) filed a similar Answer and Motion on

October 23, 1981. On October 26 and 29, 1981, the Respondents,

Thomas J. Drury (then the Bishop of the Diocese of Corpus

Christi), Elena S. Kenedy, Bruno R. Goldapp, Kenneth Oden

and the Alice National Bank filed original Answers, including the

defense of improper venue, Motions for Judgment on the Plead-

ings, limitations and laches. Pursuant to the U.S. District Court’s

Order, on March 31, 1982, Gregory filed an Amended Complaint.

On April 9, 1982, the District Court for the Western District of

Texas transferred the case to the Southern District of Texas, on

the grounds of forum nonconvenience and the National Bank Act.

On May 18, 1982, Gregory moved to disqualify Judge Hayden

Head, Jr., the District Court’s Judge originally assigned to the

case after transfer to the Southern District of Texas. Judge Head

disqualified himself by Order entered October 8, 1982. This

action was then assigned to Judge Bue on or about October 3,

1983.

On June 19, 1985, Judge Bue scheduled all then pending

motions in this cause for hearing on October 31, 1985. The

hearing on all pending motions subsequently was rescheduled for

January 9, 1986. On January 9, 1986, after a lengthy hearing in

chambers, Judge Bue granted the Respondents’ Motions for

Judgment on the Pleadings (with costs) and denied as moot the

remaining Motions. An Order was entered on January 24, 1986,

granting the Respondent’s Motion for Judgment on the Pleadings

and dismissing Gregory’s action with prejudice and denying all

other relief not expressly granted or which was inconsistent with

the dismissal.

On January 27, 1987, the Fifth Circuit Court of Appeals

affirmed the judgment of the U.S. District Court by written

opinion reprinted in Appendix A.

6

STATEMFNT OF THE FACTS‘

During her lifetime, Mrs. Sarita K. East, a Texas resident,

caused to be incorporated under the Texas Non-Profit Corpora-

tion Act, The John G. and Marie Stella Kenedy Memorial

Foundation, for religious, charitable and educational purposes.

Initially, Mrs. East was the sole member, but in February 1960,

she appointed Jacob S. Floyd and Lee H. Lytton, Jr., both

residents of the State of Texas, as co-members of such Founda-

tion. Sometime thereafter she requested and received their

resignations as members. In December 1960, Mrs. East ap-

pointed Gregory, a Trappist monk based in Spencer, Massachu-

setts, as a co-member. The Will of Sarita K. East, dated January

22, 1960, left the residue of her estate to her Foundation. A First

Codicil to said Will, named the Bishop of the Diocese of the

Roman Catholic Church of Corpus Christi, Texas, as her succes-

sor to membership in such Foundation upon her death. Thereaf-

ter, from time to time, Mrs. East made additional codicils to such

Will, and under the Third Codicil, she revoked the First Codicil

which named the Corpus Christi Bishop, and appointed Gregory,

* All parties to this action, the U.S. District Court, and the Fifth Circuit

Court of Appeals have treated the skeleton facts outlining the history

of the state court decisions in such cases as a statement of undisputed

facts in this case. Respondents, in their statement of facts, refer to

facts outlined in such previous state court cases and to those in the

record of this case. Numerous facts alleged to be true in Petitioner's

Petition for Writ of Certiorari have no basis in any of the previous state

court decisions or in this record. For example, on page 5 above of

Petitioner’s Petition to this court, Respondents cite these statements as

having no basis in any prior state decision or in this record, to-wit:

a. “The Foundation was established on January 22, 1960, by a

wealthy and deeply religious South Texas widow, Sarita Kenedy East,

for the purpose of assisting the poor and underprivileged primarily in

South America.”

b. “However, Mrs. East discovered shortly thereafter that Floyd's

advice was erroneous.”

c. “It was because of one such South American trip with Gregory

that Sarita East decided to form the Foundation and dedicate its

resources to the poor in South America.”

The remainder of the Petition is replete with erroneous assertions not

found in this record or in any of the previously reported state decisions.

7

Peter Grace and Father Patrick J. Peyton as successor-members

to her after her death. (Gregory v. Lytton, 422 S.W.2d 586, Tex.

Civ. App., San Antonio, 1967, writ ref. n.r.e., at page 587; Resp.s’

App. Q-204a)

In February 1961, Mrs. East died in New York City and

thereafter, in April 1961, Lytton (later joined by Floyd) filed a

suit against Peter Grace, Father Peyton, Thomas Doyle and J. J.

Meehan, all residents of the State of New York, the Foundation

and Gregory, said suit being filed in the District Court of Jim

Wells County, Texas, as Cause No. 12,074, styled Lee H. Lytton,

Jr., et al. v. The John G. and Marie Stella Kenedy Memorial

Foundation et al. The Attorney General of Texas was later joined

in the suit as an indispensable party. Lytton and Floyd alleged

generally that their respective resignations as members of the

Foundation were obtained as a result of undue influence exerted

upon Mrs. East by Gregory, et al. and that the revocation of the

First Codicil appointing the Corpus Christi Bishop and the

December 1960 appointment of Gregory as a member of the

Foundation were also procured as a result of undue influence

practiced upon Mrs. East by Gregory et al. Gregory v. Lytton,

supra, at page 587; (Resp.s’ Q-204a) The Houston, Texas, law

firm of Baker & Botts (Messrs. Robert K. Jewett and Denman

Moody) were retained to represent Gregory, Peter Grace, Father

Peyton, Tom Doyle, Jack Meehan and the Kenedy Memorial

Foundation. (Gregory v. White, 604 S.W. 2d 402, Tex. Civ. App.,

San Antonio, 1980, writ ref. n.r.e., at page 404; petition for cert.

denied, 452 U.S. 939 (1981) Resp.s’ App. K-86a)

Thereafter, a contest of the Will and Codicils of Mrs. East was

filed by her heirs-at-law on July 25, 1962. (Trevino v. Turcotte,

564 S.W.2d 682, Tex. S. Ct., 1978, at page 684; Resp.s’ App.

T-29la) While the Will contest was pending, under date of

October 28, 1963, a settlement agreement was fully executed in

this case and on September 1, 1964, an agreed interlocutory

judgment was entered by the Court upon such settlement agree-

ment with prejudice as to all parties. (Gregory v. White, supra, at

page 404; Resp.s’ App. K-86a).

{n connection with such settlement, a full and final agreement

between the parties was reached in August of 1963, and each of

the clients represented by Baker & Botts (including Gregory)

consented in writing by affixing their signatures to the settlement

agreement and agreed Judgment. Gregory signed both docu-

ments as “Christopher Gregory,” and under the name appeared

“Christopher Gregory, Sometimes Known as Brother Leo,

OCSO, Defandant and Cross-Defendant, Acting Individually and

as a Religious of the Cistercian Order of the Strict Observance

Under Valid Authority of His Lawful Religious Superior.” The

documents signed by Gregory, Grace, Doyle, Meehan and Father

Peyton were transmitted to Baker & Botts and received by them

on October 9, 1963; whereupon, Baker & Botts presented the

agreement to Mr. Kenneth Oden as the representative of Lytton

and Floyd on October 10, 1963, and Mr. Oden undertook to

present it to his clients for their signatures. The settlement

agreement and Judgment were then signed by the Texas Group

and the last person to sign was Mr. Zuber, Assistant Attorney

General of Texas, and he signed on October 28, 1963. (Gregory v.

White, supra, at page 404; Resp.s’ App. K-86a)

Thereafter, on September 1, 1964, the settlement agreement

was presented to the trial court for approval and entry of Judg-

ment thereon. Mr. Jewett was acting as a member of his firm

Baker & Botts, in the entry of the Judgment which was provided

for in the settlement agreement. Mr. Jewett acted upon the terms

and provisions of the signed settlement agreement and agreed

Judgment which were delivered to him for implementation, and

with that authority from Gregory, his attorney, Mr. Jewett,

satisfied the requirements of the settlement agreement with re-

spect to the membership of the Foundation and all other provi-

sions of the settlement agreement. Certain corporate proceedings

were to take place in open court incident to the implementation of

* the Judgment, and Mr. Jewett acted in carrying out in open court

those corporate proceedings. Mr. Jewett obtained a proxy from

Grace and he received an authorization from Gregory’s Abbot,

Thomas Keating, to act for Gregory in carrying out the corporate

proceedings. Mr. Jewett had been advised that further authority

to act for Gregory in implementing the settlement and Judgment

would be sent tc him, and Mr. Jewett did thereafter receive a

letter dated July 9, 1964, signed by Gregory and addressed to his

Abbot.’ This letter from Gregory to his Abbot granted to the

Abbot full power and authority to act for Gregory in the premises

and, in connection with the implementation of the settlement

agreement and agreed Judgment. (Gregory v. White, supra, at

page 404; Gregory v. Lytton, supra, at page 588; Resp.s’ App.

K-86-a; Resp.s’ App. Q-204a)

Some one and one-half years after the entry of the Judgment,

Gregory gave to the trial court his first notice of his claim of non-

consent by the filing of his Application for Bill of Review on

March 8, 1966, seeking to set aside the agreed Judgment. The

Bill of Review was dismissed and the Court of Civil Appeals

affirmed. (Gregory v. Lytton, supra, at page 586, 587; Resp.s’

App. Q-204a)

Thereafter, Gregory filed his Motion in Cause No. 12,074 in

the District Court of Jim Wells County, Texas, on August 1,

1968, to set aside such agreed Judgment. In Gregory’s Motion to

set aside the agreed Judgment (and in his Amended Motion to

set aside Judgment), Gregory asserted:

>The July 9, 1964, letter from Petitioner to Abbot Keating read in

pertinent part as follows:

“Reverend Father: Aware that what I am today signing may be at

any time used by the person to whom it is addressed in any manner

that he in conscience may see fit, I wish to make the following carefully

worded but unequivocal statement... .

“In the present situation I accept the decision of events in the light

of the above, without condition and thus I shall initiate no further

action whatsoever concerning the Kenedy Memorial Foundation. The

word ‘initiate’ does not preclude my cooperating in such actions as my

superiors may judge to be necessary for the finalizing of the settlement

already agreed upon.”

10

1. That his consent to the settlement and agreed Judg-

ment was obtained by duress;

2. That his consent was conditionally given, and these

conditions were never met;

3. That the delivery of the signed settlement agreement

and the entry of the agreed Judgment was made by a person

or persons unauthorized to make such delivery under the

circumstances;

4. That the settlement became impossible of performance

by reason of the death of Jacob Floyd;

5. That the settlement agreement had been altered and

provisions changed and added without his consent, and

without the cunsent of any person authorized by him;

6. That the settlement agreement was incomplete and

incapable of settling all the issues;

7. That the Defendant was not present at the entry of the

Judgment, and that he had not authorized the person or

persons purporting to act for him at the time of entry of the

Judgment;

8. That in any event, he no longer consented to the

settlement agreement or the agreed Judgment; and

9. That all pleadings by all other parties were denied.

(Resp.s’ App. E-42a; Resp.s’ App. F-46a)

After Gregory’s filing of his Motion to set aside the agreed

Judgment, he took no action on this motion for eleven years.

In 1978, the Will contest was terminated (Resp.s’ App.

T-291a) and except for the pendency of Gregory’s Motion to set

aside the agreed Judgment, the time had come for the trial court

to make such Judgment a final one. Therefore, on July 24, 1979,

the Attorney General of Texas et al. filed a motion for the Entry

of Final Judgment and to Dismiss Petitioner's Motion to Set

Aside the Interlocutory Judgment. (Gregory v. White, supra, at

page 403; Resp.s’ App. K-86a) On or about September 13, 1979,

Gregory filed his first Amended Motion to set aside the agreed

1]

interlocutory Judgment, and a copy of said pleading was served

upon all parties in interest in the litigation, including the Alice

National Bank, Mrs. Kenedy, Goldapp and Oden. (Resp.s’ App.

F-46a) All of the members and directors of the Kenedy Memo-

rial Foundation (Mrs. Kenedy, Bishop Drury, Lytton, Goldapp

and Oden) were served either individually or through their

attorney with a copy of said pleading by registered mail. Thereaf-

ter, Kenneth Oden intervened in the action and filed an answer to

the Motion and Amended Motion of Gregory to set aside the

interlocutory agreed Judgment in behalf of the Kenedy Memorial

Foundation, Mrs. Kenedy, Bishop Drury, Lytton, Goldapp, the

Alice National Bank, as Independent Executor of the East Estate,

and Oden, individually. The answer denied ail allegations made

by Gregory in his Motions to set aside the agreed interlocutory

Judgment. (Resp.s’ App. G-52a) An answer to the Motion of

the Attorney General for entry of Final Judgment and dismissal

of the Gregory Motion was also filed by Oden in behalf of the

same named parties above described. (Resp.s’ App. H-55a)

Gregory made no effort to attempt to strike any of the parties. In

addition, the above-named parties have participated in the pro-

ceedings of Cause No. 12,074 through Final Judgment and on

each appeal of such Judgment through the Supreme Court of the

United States. (Gregory v. White, supra, at page 403; Resp.s’

App. K-86a)

A trial upon the issues raised by Gregory’s Motion and the

Motion for the Attorney General was held on September 21,

1979. The record in the state proceedings discloses that Gregory’s

jury demand at this proceeding was not timely made, and that

Gregory failed to complain of the lack of a jury at the time of the

trial on September 21, 1979. Nor did he move for continuance

orally or in writing on the ground that he was not prepared to go

to trial. The matters in issue were then tried to the Court, without

a jury, and upon hearing, the court entered Final Judgment and

dismissed Gregory’s Motion. (Gregory v. White., supra, at page

403; Resp.s’ App. K-86a) Gregory appeared in person and with

his counsel at the September 21], 1979, trial and he testified in

12

support of his legal positions in issue therein. Gregory specifically

asserted in his Petition for Writ of Certiorari in Gregory v. White

(Resp.s’ App. N-114a) that he raised the issues of right to trial

and right to trial by jury in the trial court. (Resp.s’ App. N-127a)

At the trial court level, Gregory essentially took the position

that even though he had signed the settlement agreement and

agreed interlocutory Judgment, yet he did not consent at the time

of the hearing, September 21, 1979, to the entry of Final Judg-

ment, and, therefore, such Judgment could not be made final.

The Attorney General and Kenedy Memorial Foundation et al.

offered evidence showing the unconditional nature of the consent

and agreement of Gregory, as well as the authority of those acting

in behalf of Gregory on September 1, 1964, at the time such

settlement and agreed interlocutory Judgment were entered of

record. (Gregory v. White, supra, at page 403-404; Resp.s’ App.

K-86a)

Final Judgment was entered by the Texas court on November

28, 1979, and Gregory filed an appeal to the Court of Civil

Appeals (Fourth Supreme Judicial District — San Antonio),

wherein he raised four points of error. In such brief Gregory

asserted (1) that the trial court erred in entering Final Judgment

without a trial on the merits; (2) that the trial court erred in

rendering the settlement agreement and interlocutory Judgment

final without a trial on the merits of the issues raised by Gregory

in his Motion; (3) that the trial court erred in dismissing his

Motion without a jury trial; and (4) that the trial court denied

Gregory due process of law in entering Judgment without a trial

on the issues raised by Gregory in his Motion. (Resp.s’ App.

J-68a)

The Texas Court of Civil Appeals held that the evidence

conclusively established that Gregory signed the settlement

agreement and that the Judge had no reason to know of any

dissatisfaction which Gregory might have had with the agreement

at the time the interlocutory Judgment was rendered and that

since the trial court had no knowledge of any lack of consent prior

13

to entry of the interlocutory order, Gregory could not prevent

Final Judgment by attempting to later withdraw his consent. In

connection with Gregory’s claim of conditional delivery of the

settlement agreement and agreed Judgment, the Court of Civil

Appeals noted that “neither the Appellant’s (Gregory’s) attor-

neys, the attorneys for the Appellees, the trial Judge, nor any of

the other parties to the suit knew of the conditional nature of his

consent until several months after the Judgment was rendered.”

(Gregory v. White, supra, at page 404; Resp.s’ App. K-86c)

Gregory then filed an Application for Writ of Error to the

Supreme Court of Texas, wherein he again asserted his denial of a

trial on the merits point, his denial of a jury trial point, and his

denial of due process point. These points of alleged error are

more particularly described in Gregory’s Application for Writ of

Error. (Resp.s’ App. L-93a) The Supreme Court of Texas

refused the writ, citing no reversible error. (Resp.s’ App.

M-113a)

Gregory then filed his Petition for Writ of Certiorari to the

United States Supreme Court, represented therein by the same

counsel, (James D. St.Clair, Hale and Dorr) in this present

action and appeal; wherein he again asserted a denial of due

process in that he alleged he was denied both a trial on the merits

on the issues raised by his Motion and he was denied a jury trial.

Gregory also raised other points more particularly described in his

Petition for Writ of Certiorari. (Resp.s’ App. N-114a) On June

15, 1981, the United States Supreme Court denied Gregory’s

Petition for Writ of Certiorari and let stand the judgments and

actions of the Courts of Texas. (Resp.s’ App. D-191a)

Thereafter, Gregory filed the Complaint in this cause on

September 17, 1981, asserting essentially the same facts as were

asserted in the Texas case, except that the actions of the party

Defendants were now cast in the form of a conspiracy involving

the Attorney General of the State of Texas, and alleged violations

of 42 U.S.C. § 1983 were brought forward in this federal action.

(Resp.s’ App. P-192a)

14

REASONS FOR DENIAL OF THE WRIT

1.

IN ACCORDANCE WITH 28 U.S.C. § 1738, THE FED-

ERAL COURTS MUST GIVE PRECLUSIVE EFFECT TO A

PRIOR STATE COURT JUDGMENT WHERE THE NEW

CLAIM ASSERTED UNDER 42 U.S.C. § 1983 IN A SUBSE-

QUENT ACTION BETWEEN THE SAME PARTIES AND

REQUESTING THE SAME RELIEF IS' ENTIRELY

GROUNDED UPON AND BASED UPON THE IDENTICAL

FACTS AND ISSUES WHICH HAVE ALREADY BEEN

ASSERTED AND FULLY ADJUDICATED IN PRIOR

STATE COURT ACTIONS AND APPEALS FROM SUCH

STATE COURT ACTIONS TO THE UNITED STATES

SUPREME COURT.

The Federal Full Faith and Credit Statute, 28 U.S.C. § 1738,

requires and it is now settled law that a Federal court must give to

a State court judgment the same preclusive effect as would be

given that judgment under the law of the State in which the

judgment was rendered. Allen v. McCurry, 449 U.S. 90, 101

S.Ct. 411, 66 L.Ed.2d 308 (1980); Kremer v. Chemical Constn:c-

tion Corp., 456 U.S. 461. 102 S. Ct. 1883, 72 L.Ed.2d 262

(1982). Allen v. McCurry made clear that issues actually

litigated in a State court proceeding are entitled to the same

preclusive effect in a subsequent Federal § 1983 suit as they enjoy

in the courts of the State where the judgment was rendered. In

Migra v. Warren City School Board of Education, 465 U.S. 75,

104 S.Ct. 892, 79 L.Ed.2d 56 (1984), the Supreme Court

extended and applied the same preclusive effect of a State court

judgment in a subsequent Federal § 1983 suit that the § 1983

litigant could have raised but did not raise in the earlier State

court proceeding.

The Full Faith and Credit Clause “Allows the States to

determine .... the preclusive effect of judgments in their own

courts” Marrese v. American Academy of Orthopedic Surgeons,

15

470 U.S. 373, 380; 105 S.Ct. 1327, 1332; 84 L.Ed.2d 274, 281

(1985); Parsons Steel v. First Alabama Bank, 106 S.Ct. 768; 88

L.Ed.2d 877 (1986).

Under the Texas Doctrine of res judicata and collateral estop-

pel, Gregory must concede without reservation all of the factual

issues and claims placed in dispute in Cause No. 12,074 in the

District Court of Jim Wells County, Texas, and all appeals

therefrom; since the same facts and issues asserted in the previous

Texas case formed the basis for Gregory’s § 1983 action, no new

facts or independent claim has been asserted which has not

already been the subject of state judicial review and disposition.

The principal of res judicata will bar relitigation in a subse-

quent action of an issue which was or should have been in the

earlier action if (1) the prior judgment has been rendered by a

court of competent jurisdiction, (2) the decision was a final

judgment, (3) the same parties are involved in both actions, and

(4) the same cause of action is involved in both suits. Wasoff v.

American Automobile Insurance Company, 451 F.2d 767 (Sth

Cir., 1971) Under res } «‘icata, the judgment in the first case bars

the subsequent action “not only in respect of every matter which

was actually offered and received to sustain the demand, but also

as to every ground of recovery which might have been presented.”

Stevenson v. International Paper Company, 516 F.2d 103, 109

(Sth Cir., 1975)

Under the Texas law of res judicata,

waeaiig an existing final judgment rendered upon the mer-

its by a court of competent jurisdiction upon a matter within

its jurisdiction is conclusive of the rights of the parties in all

other actions on the points at issue and adjudicated in the

first suit. Further, the rule of res judicata in Texas bars

litigation of all issues connected with a cause of action or

defense which with the use of diligence might have been

tried in a former action as well as those which were actually

tried.” Abbott Laboratories v. Gravis, 470 S.W.2d 639, 642

(Tex. S. Ct., 1971)

16

For the principle of res judicata to be applicable as a preclusion

to subsequent claims or issues, definite elements must be shown

to exist, namely identity of parties, issues, subject matter, relief

sought and cause of action. Franklin v. Rainey, 556 S.W.2d 583,

585 (Tex. Civ. App., Dallas, 1977, no writ); Bonniwell v. Beech

Aircraft Corporation, 663 S.W.2d 816, 818 (Tex. S. Ct., 1984);

Hudspeth v. Hudspeth, 673 S.W.2d 248 (Tex. Civ. App., San

Antonio, 1984, writ ref. n.r.e.)

Under the doctrine of collateral estoppel, once a court has

decided an issue of fact or law necessary to its judgment, that

decision may preclude relitigation of the issue in a suit on a

different cause of action involving a party to the first case.

Montana v. United States, 440 U.S. 147, 153, 99 S. Ct. 970, 973

(1979); Allen v. McCurry, 101 Sup. Ct. 411, 414, (1980) There

are three requirements for the application of collateral estoppel to

a federal claim: (1) identify between the issue at stake and the

issue litigated in the earlier proceeding, (2) actual litigation of the

Critical issue, (3) necessity that the decision on the issue in the

prior litigation be a necessary, essential part of the judgment in

the earlier action. Holmes v. Jones, 738 F.2d 711 (Sth Cir.,

1984); Hicks v. Quaker Oats Company, 662 F.2d 1158 (Sth Cir.,

1981)

In the case before this Court, Gregory has heretofore conceded

that the prior final judgment in the Texas court was rendered by a

court of competent jurisdiction, and that for res judicata purposes,

the requirement that the prior judgment be a final judgment on

the merits has been established.

As to the identity of parties, this record clearly shows that the

Respondents were all a party to the litigation in the prior state

action, and they were all parties to the September 1, 1964,

interlocutory judgment and agreed settlement, and they all ap-

peared in the trial of September 21, 1979. (Resp.s’ App. G-52a;

App. H-55a; App. I-58a) In addition, these Respondents partici-

pated in every appeal proceeding of the prior Texas judgment, and

17

they wer specifically named by Gregory as a party Defendant to

this litigation under 42 U.S.C. § 1983.

The Texas courts have expressly held that persons who have a

direct interest in the litigation and exercise their right to partici-

pate therein, including the participation in appeals from such

litigation, then such persons are real parties to the action, and

they are bound by the judgment as though they were a named

party. (American Indemnity Company v. Fellbaum, 263 S.W.

908, Tex. S. Ct., 1924); Cavers v. Sioux Oil and Refining Co., 39

S.W.2d 862 (Comm. App., 1931)

Since the parties to this action are identical (save and except

the New York Defendants in Cause No. 12,074, which Gregory

has chosen not to join in this action), the requirement for identity

of parties is clearly established.

The primary legal issue before this court concerns the question

of whether the federal claims asserted in Gregory’s § 1983 action

is ‘a different cause of action” than those asserted in the prior

Texas action, and if such claim is “a different cause of action,”

then whether such claim is precluded under either the doctrine of

res judicata or collateral estoppel.

The Fifth Circuit has recently reviewed the Texas law gov-

erning res judicata and its application to federal claims or causes

of action filed under 42 U.S.C. § 1983 in Flores v. Edinburg

Consolidated 1.8.D., 741 F.2d 773 (Sth Cir., 1984) A full

analysis of style cases from the Texas Supreme Court was made

in Justice Higginbotham’s opinion, and particular attention was

directed to the legal question concerning “a different cause of

action” under Texas law in a § 1983 case. The court held,

aed oad if res judicata barred the relitigation only of those

issues actually decided in the first action, it would be indis-

tinguishable from collateral estoppel with respect to the

issues raised in the pleadings; only with respect to issues that

should have been raised in the pleadings but were not raised

would res judicata pose a greater bar than collateral estoppel.

See Gilbert v. Fireside Enterprises, Inc., 611 S.W.2d 869, 871

18

and note 4 (Tex. Civ. App., 1980). Furthermore, if the

pleading of a different legal theory would have induced the

court to decide a particular issue in the first action, the issue

is plainly one ‘which, with the use of diligence might have

been tried in the former action.’ Diligence is, in brief, a key

determinant of the applicability of the res judicata bar to any

particular issue. ..... ” page 776

, Saree We conclude therefore that ‘a different cause

of action’ is one that proceeds not only on a sufficiently

different legal theory but also on a different factual footing as

not to require the trial of facts material to the former suit;

that is, an action that can be managed even if all the disputed

factual issues raised in the Plaintiff's original complaint are

conceded in the Defendant’s favor. ...... ” page 777

Applying this test to Gregory’s § 1983 claims, as in the Flores

case, Gregory cannot concede the factual issues previously raised

in the Texas courts and at the same time prevail in his § 1983

‘claim. His federal action claims are grounded upon material facts

and issues that were litigated in the prior action.

Gregory asserts that his claims of lack of consent, duress,

coercion and related claims were never litigated. It is obvious

from the opinion of the Texas Court of Appeals in Gregory v.

White, supra, that once the settlement agreement had been

incorporated into the judgment of the court, Gregory had the

opportunity and the duty, if he wished to set aside such interlocu-

tory judgment, to come forward with affirmative proof or evidence

of fraud or collusion in connection with the original entry of the

September 1, 1964, interlocutory judgment. Gregory v. White,

supra, at page 403. Incident to any such allegation and proof of

fraud or collusion, Gregory had the opportunity to offer evidence

of lack of consent by Jewett, duress, coercion or any other related

claim to show impropriety with the entry of the September 1,

1964, judgment. This he failed to do; conversely, Respondents

offered affirmative evidence of the unconditional and untarnished

nature of such prior interlocutory judgment and the surrounding

circumstances of its entry.

i ciiaasieceesimeaaniaiamaiamiiiiialliaiaiiaaiiiaiah

19

Gregory in such trial proceeding chose to rely solely on the

erroneous legal proposition that he had now represented to the

trial court prior to the rendition of a final judgment that he no

longer consented to the terms of the interlocutory judgment, and

that the court was under a duty to set such interlocutory judgment

aside and to proceed to hear the matters in controversy created by

the withdrawal of the interlocutory judgment.

The state is free to estab.:sh its own procedures and practices

with regard to conduct of civil litigation in Texas courts, including

the right to trial by jury. Jacapondi v. New Amsterdam Cas. Co.,

258 F. Supp. 880, D.C. Pa., 1966, aff'd 379 F.2d 311; cert. denied

in 88 S. Ct. 802, 389 U.S. 1054, 19 L.Ed. 2d 849; Wooten v.

Dallas Hunting & Fishing Club, Inc., 427 S.W. 2d 344 (Tex. Civ.

App., Dallas, 1968, no writ hist.)

Accordingly, the Texas courts have established their own

procedures and practices in connection with the right to a jury

trial in civil matters. Article I, Section 15 and Article V, Section

10 of the Texas Constitution, V.A.T.S., preserve and protect the

right of any litigant in a civil case to be afforded a jury trial,

provided however, that these Texas Constitutional provisions

further empower the state legislature to enact such statutes as are

necessary to regulate the right to trial by jury.

The Texas Rules of Civil Procedure have been promulgated as

the rules governing the trial of civil cases in all Texas courts.

Rule 216 et seq., of these Rules of Civil Procedure specifically

prescribe the provisions related to the right to a jury trial.°

The right to trial by jury in Texas is not an absolute right in

civil cases, but rather, it is subject to certain procedural rules,

® Rule 216 provides that “No jury trial shall be had in any civil suit,

unless application be made therefor and unless a fee of five dollars if in

the district court, and three dollars if in the county court, be deposited

by the applicant with the clerk to the use of the county on or before

appearance day or, if thereafter, a reasonable time before the date set

for = of the cause on the non-jury docket, but not less than ten days

in advance.”

20

such as Rule 216 of the Texas Rules of Civil Procedure. Wooten

v. Dallas Hunting & Fishing Club, Inc., supra.

Even though the provisions of Rule 216 have been held to be

discretionary rather than mandatory in their application, the

Texas courts have consistently held that when Rule 216 has not

been complied with, a trial court’s decision to grant or deny a jury

trial will not be reversed on appeal except on a showing of abuse

of discretion by the trial court. In the previous appeals in the

Texas courts and to this Supreme Court, it was Gregory’s burden

on appeal to show an abuse of such discretion. Childs v. Reunion

Bank, 587 S.W.2d 466, (Tex. Civ. App., Dallas, 1979, writ ref.

n.r.e.); Arnoff v. Texas Turnpike Authority, 299 S.W.2d 342

(Tex. Civ. App., Dallas, 1957, no writ hist.); Wooten v. Dallas

Hunting & Fishing Club, Inc., supra. The abuse of discretion, if

any, must be shown and must be “apparent on the face of the

record.” Ramsey v. Dunlop, 205 S.W. 2d 979 (Tex. S. Ct.,

1947); Hernandez v. Light Pub. Co., 245 S.W.2d 553 (Tex. Civ.

App., San Antonio, 1952, writ ref.) The record in this case and in

the previous Texas appeals: is completely void of any showing of

an abuse of discretion by the trial court. Since there is nothing in

the record to show any of the circumstances surrounding the jury

request except that it was untimely made, no error and no abuse

of discretion was shown by Gregory in the prior appeal or in this

appeal. Lebman v. Sullivan, 198 S.W.2d 280 (Tex. Civ. App.,

San Antonio, 1946, writ ref. n.r.e.); Arnoff v. Texas Turnpike

Authority, supra.

By failing to press his jury demand at trial, Gregory waived his

untimely jury demand and consented to a non-jury trial of the

issues before the court. Hernandez v. Light Pub. Co., supra;

Richardson v. Raby, 376 S.W.2d 422 (Tex. Civ. App., Tyler,

1964, no writ hist.); Huddleston v. Western National Bank, 577

S.W.2d 778 (Tex. Civ. App., Amarillo, 1979, writ ref. n.r.e.).

Due process involves the fundamental right to be heard and the

full and fair opportunity to litigate issues and present evidence at

a meaningful time and in a meaningful manner. Fuentes v.

Shevin, 407 U.S. 67 (1972) Gregory had a full and fair

opportunity to litigate those issues and facts that could have given

rise to the setting aside of the interlocutory judgment, and he

failed to do so. There has been no denial of his-right to litigate

those issues pertaining to the propriety of the interlocutory judg-

ment “in a meaningful manner,” and he should not now be heard

to complain from his lack of diligence or his erroneous concepts of

Texas law.

Applying the Flores test regarding the concession and admis-

sion of all facts-and issues in dispute in the prior state action,

Gregory would have to concede that his execution of the settle-

ment agreement which was incorporated into the interlocutory

judgment was accomplished without coercion or duress, and that

the judgment was entered with his full consent, authority and

without fraud or collusion of any person. The conceding of these

issues and factual basis completely defeats and renders Gregory’s

§ 1983 claims to be without merit as a matter of law in that such

federal claims are grounded on facts and issues heretofore liti-

gated in favor of Respondents. A review of Gregory’s factual

assertions and the issues presented in his Amended Complaint in

this § 1983 case as compared with the factual allegations and

issues presented in the Texas Courts and previously to this court,

clearly demonstrate that his § 1983 claim is predicated on the

same factual background and issues which have previously been

adjudicated by the Texas Courts.

The designation by Gregory of certain facts as a conspiracy, all

of these facts being adjudicated in a previous state proceeding,

and the allegation that he has been denied (1) membership in the

Kenedy Memorial Foundation, (2) the right of trial and (3) the

right to jury trial, all of the foregoing being as a result of such

alleged conspiracy, do not alter or change the character of the

facts, the issues or the alleged claims in the prior state proceed-

ings or in this proceeding. Holmes v. Jones, supra.

Although Gregory continues to deny to this court that his right

to a trial on the merits and right to trial by jury were issues before

eee Re enema Sa Sen i hee NCI NE TE Re EEN CT, ETO

22

the Texas courts, in his first Petition for Writ of Certiorari to this

court, Gregory claimed in connection with the September 21,

1979, trial, that:

“Counsel for Gregory appeared at the hearing and raised the

issue of Keating’s lack of authority under civil law to grant a

power of attorney on behalf of Gregory. He also raised the

issues of right of trial and right to trial by jury.” (Resp.s’

App. N-127a)

In each stage of the appeal process in Texas courts, and to this

court, he raised the same denial of trial and denial of jury trial

points that are raised in this § 1983 action. (Resp.s’ App. J-68a;

App. L-93a; App. N-114a)

The subject matter of the prior Texas case and this § 1983

federal action are the same — a determination or redetermination

of who is entitled to serve as members and directors of the

Kenedy Memorial Foundation. The relief sought in this proceed-

ing is the same relief sought in the prior Texas case — to appoint

Gregory as the sole member and/or director of the Kenedy

Memorial Foundation with complete authority over such Founda-

tion to the exclusion of all other interested parties. The same

“rights” are asserted by Gregory herein as were asserted in the

prior state action; the same “wrongs” are asserted by Gregory in

this action as form the basis of the factual allegations in prior

state action; and the same facts are required in each case for

Gregory to have sustained and substantiated his claims and

requested relief.

In light of the foregoing, these Respondents submit that the

requisite elements for the application of res judicata and/or

collateral estoppel to preclude the § 1983 federal claims of Greg-

ory have been clearly identified and established as a matter of law,

in that this federal litigation involves:

a. The same parties, subject matter, issues and factual

determinations, relief sought and causes of action;

23

b. The express federal claims of denial of a trial on the

merits and denial of jury trial were raised at the trial court

and every appeal thereafter, and thus, they have been the

subject of full and fair state judicial review and disposition;

c. The operative facts on which Gregory relies in this

§ 1983 claims have been litigated in state court, and there-

fore, all such facts and issues must be conceded in favor of

Respondents;

d. With the conceding of those facts and issues placed in

dispute and litigated in the state court in favor of Respon-

dents, Gregory has failed to state a claim upon which relief

may be granted as a matter of law.

In connection with the res judicata — collateral estoppel

application of final state court judgment to subsequent federal

§ 1983 claims, it is now well established that the doctrines of res

judicata and collateral estoppel may be utilized to preclude both

issues and/or claims that have been asserted and litigated in prior

State actions, irrespective of whether the precise federal claim was

asserted in the prior state action. Allen v. McCurry, supra; Migra

v. Warren City School District Board of Education, supra; Kremer

v. Chemical Construction Corporation, supra

Under the Constitution’s Full Faith and Credit Clause and the

Federal Full Faith and Credit Statute, 28 U.S.C. § 1738, a federal

court must give the state court judgments the same preclusive

effect as would be given that judgment under the law of the state

in which such judgment was rendered. Allen v. McCurry, supra;

Kremer v. Chemical Construction Corporation, supra; Migra v.

Warren City School District Board of Education, supra; U.S.

Const., Art. IV, § 1; 28 U.S.C. § 1738.

In determining the application of res judicata or collateral

estoppel to an asserted § 1983 claim in this case, the federal court

must apply the Texas preclusion law. If under Texas law, the

issue or claim asserted would be barred by res judicata or

collateral estoppel, then the federal court will give the prior

24

judgment the same preclusive effect as the Texas court. Flores v.

Edinburg Consolidated 1.S.D., supra, 28 U.S.C. § 1738.

In this appeal, Gregory attempts to cast this case as one of first

impression because “Gregory’s federal § 1983 claims did not

mature until after the judgment became final,” and therefore, he

asserts that the § 1983 claim is a new claim and not precluded by

the Texas judgment. If Gregory’s § 1983 claim were grounded

upon facts and issues other than those placed in issue and

previously adjudicated in the Texas Courts, his alleged claim

would not be precluded. However, the very facts and issues which

give rise to his asserted § 1983 claim have been previously

asserted by him and fully adjudicated. The cases cited by

Gregory regarding the maturing of his § 1983 claim after the

Texas judgment [ Lawlor v. National Screen Corp., 349 U.S. 322

(1955); Norco Construction, Inc. v. King County, 801 F.2d 1143

(9th Cir. 1986); Battieste v. Baton Rouge, 732 F.2d 439 (Sth Cir.

1984); Downtown v. Vandemark, 581 F.Supp. 40 (N.D. Ohio,

1983) ] and related cases, are not in point with the case before

this court because the underlying factual basis for the newly

asserted claims in the instant cases had not been previously

asserted or litigated in the previous state action.

Thus, the Fifth Circuit correctly applied claim preclusion to

Gregory’s asserted § 1983 claim in accordance with applicable

state and federal law.

2.

THERE IS NO CONFLICT IN THE DECISIONS OF THE

FIFTH CIRCUIT COURT OF APPEALS AND THOSE DE-

CISIONS OF THE SEVENTH AND TENTH CIRCUIT

COURTS OF APPEAL IN THEIR CLAIM PRECLUSION

APPLICATION UNDER 28 U.S.C § 1738 AND 43 U.S.C. ‘

§ 1983 TO PRIOR STATE COURT JUDGEMENTS.

Gregory has erroneously asserted that a conflict exists between

the decisions of the Fifth Circuit and the Seventh and Tenth

=

25

Circuits regarding the application of claim preclusive effect to

prior state court judgments in subsequent cases asserted under

§ 1983, No such conflict existed prior to the decisions of the Fifth

Circuit in this case, and no such conflict has been created by such

decision. Each of the cases cited by Gregory to be in conflict with

the Fifth Circuit's decision in this case is clearly distinguishable.

In each applicable instance, irrespective of whether the cases

were determined by the Fifth Circuit, Seventh Circuit or Tenth

Circuit, these courts have uniformly applied the provisions of 28

U.S.C. § 1738 and 42 U.S.C. § 1983, and each circuit has

adhered to the application of the foregoing provisions in accor-

dance with the Migra v. Warren City School District of Educa-

tion, supra, Allen v. McCurry, supra, Kremer v. Chemical

Construction Corp., supra, and related Supreme Court precedent.

Each circuit has not hesitated to apply 28 U.S.C. § 1738 to give

a state court judgment the same preclusive effect as the state

rendering the judgment would permit. In accordance with Allen

v. McCurry, each circuit will deny a litigant a federal form for the

assertion of federal constitutional rights if a state tribunal has

both recognized the, constitutional claims asserted and provided

fair procedures for determining them.

The cases cited by Gregory simply apply 28 U.S.C. 1738 in

accordance with the applicable state claim preclusion law. Such

cases do not even suggest a conflict with decisions of the Fifth

Circuit.

In Scoggins v. State of Kansas, 802 F.2d 1289 (10th Cir. 1986),

the subsequent claim asserted in federal court was not considered

precluded by a prior administrative agency decision because the

Tenth Circuit found the Courts of Kansas would not have given

preclusive effect to the prior decision.

In Morgan v. City of Rawlins, 792 F.2d 975 (10th Cir. 1986),

the Tenth Circuit held that a subsequent Federal § 1983 action

was not precluded by a prior Wyoming state court action because

26

applying Wyoming principals of claims preclusion it would not be

precluded under the laws of that State.

In Thournir v. Meyer, 803 F.2d 1093 (10th Cir., 1986), Eileen

M. Thournir sued the Colorado Secretary of State under 42

U.S.C. § 1983, challenging a Colorado statute that requires a

person wishing to run as an unaffiliated candidate to be registered

in Colorado as an unaffiliated voter for at least one (1) year prior

to filing a nominating petition, alleging the statute violates Article

I, § 2 of the U.S. Constitution as well as the First and Fourteenth

Amendments. The Tenth Circuit determined that Colorado state

law required that a party against whom the doctrine of res

judicata and collateral estoppel was asserted to have a full and fair

opportunity to litigate the issue in the prior adjudication, and held

that the brevity of the state court action denied Thournir the full

and fair opportunity required by Colorado law to litigate the

constitutional issue. In our case, Gregory chose to let the case

languish in state court for eleven years.

In Jones v. City of Alton, Illinois, 757 F.2d 878 (7th Cir.

1985), the defendants moved for a dismissal on res judicata based

upon the administrative review in the state circuit court, which

decision was upheld by the state appellate court. Jones contended

that he was not given an opportunity to present evidence showing

racial discrimination in his discharge and that the state court

action erred in limiting the scope of the trial and he was denied an

opportunity to present and show racial discrimination. In our case

it was Gregory who sought to limit the scope of the September 21,

1979, state district court trial to the one narrow issue of whether

on that very day of the hearing he consented to the settlement

agreement and interlocutory judgment previously agreed to and

personally signed by him. In the Jones case the Seventh Circuit

stated that a state court judgment must be given the same res

judicata effect in federal court that it would be given in the courts 4

of the rendering states.

Apparently Petitioner does not urge Boileau v. Bethlehem Steel

Corp., 730 F.2d 929 (3rd Cir., 1984), as one of his “split” cases,

EEE

27

but he did cite it along with the others. On June 20, 1978, Mrs.

Boileau, took two separate actions; she filed 4 petition in the

Pennsylvania state court to strike a prior judgment in the Court of

Common Pleas, and she filed a diversity of citizenship action in

the federal district court. Mrs. Boileau presented her petition to

strike the judgment rendered against her in the state court, and

that court determined under Pennsylvania law such an action to

strike could be considered only on the basis of facts appearing on

the face of the record, and that no additional evidence would be

admitted. On appeal to the appellate courts of Pennsylvania, such

action against her was upheld. The U. S. District Court held that

she was barred by the prior actions of the state courts. The Third

Circuit held the filing of the federal action on the same day as the

court petition preserved the federal diversity forum for adjudica-

tion on the merits of Mrs. Boileau’s challenge to the prior

judgmient and was not bound by any considerations of res judicata

or collateral estoppel. No preclusive effect was given to the prior

judgment because she did not, under Pennsylvania law, have an

opportunity to refute the state judgment by the presentation of

any evidence in the state proceedings, and therefore, she was not

afforded any opportunity to be heard in any manner in the state

court.

As is clearly evident from a review of the foregoing cases,

preclusive effect to the prior state judgment was not given

because the state court itself would not have given preclusive

effect to the judgment or because the issues raised in the

subsequent case were not litigated or in issue in the previous state

action. They are instead based upon individual review of each

state’s issue and claim preclusion decisions. This court has ruled

in Kremer such procedure to be the proper course, stating that 28

U.S.C. § 1738 “goes beyond common law and commands a

federal court to accept the rules chosen by the state from which

the judgment is taken”. 456 U.S. at 482; 102 S.Ct. at 1898.

28

Accordingly, there is no conflict in the decisions of the Fifth

Circuit and those of the Seventh and Tenth Circuits regarding the

application of claim preclusion to prior state judgments

None of the foregoing cases are in conflict with the Fifth

Circuit’s decision in this case, in that the factual basis for

Gregory's § 1983 claims have already been adjudicated in prior

state actions and must be comceded against him. Gregory cannot

assert a § 1983 claim by the concession of the factual matters and

issues previously adjudicated. In addition, Gregory was afforded

a full and fair opportunity to present evidence and challenge the

validity of the interlocutory judgment in the prior state action, and

he failed to do so. The issues of right to trial on the merits, a jury

trial and due process under both the Texas Constitution and the

United States Constitution have been fully raised heretofore in

the Texas proceedings and adjudicated. Accordingly, the cases

cited by Gregory have no merit or application to his case for

purposes of granting a writ.

29

CONCLUSION

The Petition for Writ of Certiorari should be denied

Respectively submitted,

Harry J. Scnurz*

Schulz & Schulz

P.O. Box 580

Three Rivers, Texas 7807!

(512) 786-2545

Attorneys for Respondent

Thomas J. Drury

Davis GRaANT*®

R. Mark Dietz

1010 United Bank Tower

Austin, Texas 7870!

(512) 474-1156

Attorneys for Respondent

Lee H. Lytton, Jr

J.G. ADAMI, JR.*

Perkins, Oden, Warburton,

McNeill & Adami

P.O. Drawer 331

Alice, Texas 78333

(512) 668-8101

Attorneys for Respondents

Bruno R. Goldapp, Elena S

Kenedy, Kenneth Oden and

The Alice National Bank

* Counsel of Record

June 15, 1987