Opposition Brief — Humble Exploration Co. v. Browning
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FILED
FEB 14 1906
No. 85-1182 || gosEPH F. SPANIOL, JR,
| CLERK
In the “s a
Supreme Court of the United States
OCTOBER TERM, 1985
HUMBLE EXPLORATION COMPANY, INC., et al.,
Petitioners,
v.
JANE H. BROWNING, et al.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE TEXAS COURT OF APPEALS FOR
THE FIFTH SUPREME JUDICIAL DISTRICT
RESPONDENTS’ BRIEF IN OPPOSITION
R. JACK AYRES, JR.
4350 Beltway Drive
Dallas, Texas 75244
(214) 991-2222
Counsel of Record for
Respondents
THoMas V. Murto III
LARRY B. DWIGHT
LAW OFFICES OF
R. JACK AYRES, JR., P.C.
4350 Beltway
Dallas, Texas 75244
(214) 991-2222
Additional Counsel for
February 14, 1986 Respondents
i
ISSUE PRESENTED
Does the due process clause of the Fourteenth Amend-
ment prohibit the courts of Texas from dismissing a pending
appeal where it has been established that the appellant has
taken action which, as a matter of state law, is inconsistent
with the further prosecution of the appeal?
il
TABLE OF CONTENTS
Page
Issue Presentedl oo. scv ce necnescavsteereeeneeeeeea eens i
Table of Comtemhe 2... (ssc wstnecuwes arenes ii
Table of Authoriliee .. «<2 00000550nx0ssns Guus eeniees lil
FarieMbetion ooo oc osc cece wes ckapevepenvaepel eee 1
Statement of the Case ... 25.5 cis esnenhs 4 ¥eueeneena ees 2
Reasons for Denying the Writ ..............--eeeeeeeeee 13
I. THERE IS AN ADEQUATE, INDEPENDENT,
NON-FEDERAL GROUND TO SUPPORT
THE FURDGMEN. x. ocesseseupeeereereciass esses 13
Il. THE RECORD DOES NOT RAISE THE
QUESTIONS PETITIONERS PRESENT .......... 15
1. Petitioners’ Claims of a Trial Before a
Biased and Corrupt Judge ..............+0eeeees 16
2. Petitioners’ Allegations of Novel and
Unprecedented Procedural Determination ........ 18
3. Petitioners’ Indigency Claims .............+..++- 21
Ill. PETITIONERS ASK THIS COURT TO
REDETERMINE A FACTUAL ISSUE ............ 23
IV. THE DISMISSAL OF PETITIONERS’ APPEAL WAS
CONSISTENT WITH POLICIES ANNOUNCED
BY THIS COURT .. .....:0cissauvodeiavagenreniees. 24
Conclusion .. css ssciceccacn’euavusssbaekuneee see ci
Appendix 1. MEMORANDUM OPINION AND ORDER,
March 28, 1985; Pat S. Holloway v.
Judge Dee Brown Walker CA 03-82-1846-H_ ............ A-1
Appendix 2. Excerpts from Oral Argument in the Court of
Appeals for the Fifth Supreme Judicial District at Dallas
No. 05-82-01378CV; Humble Exploration Co., Inc.
v. dane H. Browning 2.8 svc kecccitvuaduewh ceux veteces A-4
Appendix 3. Excerpts from Volume Two of Brief of
Appellants in the Court of Appeals for the Fifth Supreme
Judicial District at Dallas No. 05-82-01378CV; Humble
Exploration Co., Inc. v. Jane H. Browning, pp 58-81 ... A-28
Appendix 4. MOTION TO RECUSE, Fairway Land
Company et al v. Humble Exploration Company v.
Jane H. Srawning; No. 82-5742-1
filed by Petitioners June 25, 1982 ...............++.-- A-50
Appendix 5. SUPPLEMENTAL MOTION TO RECUSE,
No. 82-5742-I filed dune 24, 1962 ....cccccccsecececs A-55
ili
TABLE OF AUTHORITIES
Cases: Page
Atchley v. Greenhill 373 F.Supp. 512 (S.D. Tex. 1974)
aff'd 517 F.2d 692 (5th Cir. 1975) cert. denied,
i ee er 8
Board of Supervisors of Fairfax County, Virginia, v. Allman
ke hin a's gine ty susie vedeedvece 2, 15
Browning v. Holioway 620 S.W.2d. 611 (Tex. Civ. App. —
Dallas) writ ref'd. n.r.e. per curiam
ne 4
Browning v. Navarro 743 F.2d 1069 (5th Cir. 1984) ....... 3, 11
Browning v. Placke 698 S.W.2d 362 (Tex. 1985) .......... 7
C & R Transport, Inc. v. Campbell
ee COM, SUED oy cscs i ecesessescasevess 5
District of Columbia Court of Appeals v. Feldman
ee ce neca bs bbuas sce eees sees 21
Donovan v. City of Dallas 377 U.S. 408 (1964) ............ 21
Estelle v. Dorrough 420 U.S. 534, rehearing denied
EE 26
Fox Film Corporation v. Muller 296 U.S. 207, (1985) ...... 15
Gammel Statesman Publishing Co. v. Ben C. Jones & Co. 206
S.W. 931 (Tex. Comm’n App. 1918, holding approved) .. 14
Cree &. Eunos 361 U5. 12 (1956) ....... 2... cece cnesss 17
Gulf Offshore Co. v. Mobil Oil Co. 453 U.S. 473 (1981) ).... 21
Holloway v. Walker 765 F.2d 517 (5th Cir.), cert. denied
ee ee) 7, 14
Humble Exploration Company v. Browning 690 S.W.2d 321.
(Tex. App. — Dallas 1985, writ ref'd n.r.e.) ............ 1, 14
Kalb v. Feuerstein 308 U.S. 433 (1940) ................ oe
iv
TABLE OF AUTHORITIES — (Con’t)
Cases: (Con’t)
Link v. Wabash R.R. Co. 370 U.S. 626, (1962) .......---
Middleton v. Murff 689 S.W.2d 212 (Tex. 1985) ........
Minnesota v. Andrews 419 U.S. 881, (1974) ....----+---
Nat'l Hockey League v. Metropolitan Hockey Club, Inc.
427 U.S. 639, (1976)... ccc cee c cerns escereccsoees
National Union of Marine Cooks & Stewards v. Arnold
BAG US. BZ, (1GGE) oun ccc cece s cee s ese weccesccnesces
Reed v. Allen 286 U.S. 191 (1932) ......--.ee eee eens
Taft v. Schraub 557 S.W.2d. 172
(Tex. Civ. App. 1977) .....----2ece eee e eee eceeecees
United Services Life Insurance Company v. Delaney
396 S.W.2d. 855 (Tex. 1965) ...... 2. eee eee eee eee eres
United States v. Johnston 268 U.S. 220, (1925) .........
Winters Mut. Aid Ass'n Circle No. 2 v. Reddin 49 S.W.2d
1095 (Tex. Comm'n App. 1932, holdings adopted) ....
Rules:
Fed. R.Ciw.P. G2 :... cc erees nga rr mere: rrr eT
iy oh) ° rere rr erre tere e
i ip) | i eerrrrere rr Teer Tre Cer eT
Other:
3 Tex.JuR.2d REV., Appeal and Error — Civil Cases,
§ 195, at 597 (1959) ...... cece e ee eee eee e tent eeee
4 TrEx.Jur.3d, Appellate Review,
§ 163, at 261 (1980) ........ eee e cece cece eee e neces
No. 85-1182
In the
Supreme Court of the United States
OCTOBER TERM, 1985
HUMBLE EXPLORATION COMPANY, INC., et al.,
Petitioners,
v.
JANE H. BROWNING, et al.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE TEXAS COURT OF APPEALS FOR
THE FIFTH SUPREME JUDICIAL DISTRICT
RESPONDENTS’ BRIEF IN OPPOSITION
The Respondents, Jane H. Browning, et al.,' respectfully
request that this Court deny the Petition for Writ of Certio-
rari, seeking review of the judgment of the Texas Court of
Appeals for the Fifth Supreme Judicial District in this case.
That court’s opinions in this case are reported at 690
S.W.2d 321 and 677 S.W.2d 111.
JURISDICTION
The Court should decline to accept jurisdiction to review
the judgment of the Texas court of appeals because there
'The Respondents are Jane H. Browning, Individually, and as Co-Inde-
pendent Executrix of the Estate of William W. Browning, Jr., Michael G.
Starnes, Individually, and as Co-Independent Executor of the Estate of
William W. Browning, Jr., and as Co-Trustee of the Browning Children
Trusts, Catherine Agnes Land Starnes, Katherine Louise Browning Cook,
Averille Adams Browning Dawson, William Web Browning, III, Winifred
Fallon Browning Vaughn, and Robert Holland Browning.
2
is an independent and adequate state ground upon which its
judgment is based. See, Board of Supervisors of Fairfax
County, Virginia, v. Allman, 423 U.S. 940 (1975). This mat-
ter will be discussed more fully under Reasons for Denying
the Writ, infra.
STATEMENT OF THE CASE
Petitioners seek a review of the Texas court of appeals’
dismissal of their appeal for abuse of the Texas judicial sys-
tem. Respondents, as plaintiffs, initiated this suit against
the Petitioners in September of 1979, originally in the 193rd
Judicial District Court of Dallas County, Texas. The suit
alleged that Petitioner Pat S. Holloway (“Holloway”), while
acting as family attorney for the Browning family and as an
express trustee for the Browning children, had defrauded
the late William W. Browning of Mr. Browning’s ownership
in Humble Exploration Company, Inc. (“Humble”), had
breached fiduciary duties owed to the Browning family in
various capacities, and had converted and misappropriated
with malice corporate and trust assets to his own use. The
suit sought actual and punitive damages and the imposition
of a constructive trust, an equitable remedy under Texas
law. As will be discussed infra, the jury found favorably to
the Respondents on the ultimate fact issues.
On November 19, 1979, Respondents Holloway and Hum-
ble filed voluntary Chapter 11 bankruptcy petitions and
immediately removed the 1979 case to the bankruptcy court.
Holloway subsequently stated that:
... [the bankruptcy] filing was a technical legal maneu-
ver made only for the purpose of removing to the fed-
eral courts [the] lawsuit... .
3
...[T]hat because of the peculiar and unusual relation-
ship between the attorneys for [Respondents] and the
state district judge where the suit was brought [Judge
Hugh Snodgrass], the company’s attorneys believed
that a large money judgment was about to be rendered
against the company without any trial or hearing of any
kind on the merits of the alleged claim and the only
legal way to get the case out of that judge’s court was to
file in the federal court under Chapter 11. (Dx.1 Settle-
ment Hearing Statement of Facts, 487-489).
Pursuant to a subsequent agreement of the parties, the
bankruptcy court remanded the case to the state court but
retained authority to enforce or effectuate any resulting
judgment. The agreement provided that the parties would
request the presiding administrative judge to assign a
retired or visiting judge to hear the cause. It also provided
that the parties had full rights of appeal of the judgment in
the trial court, and that upon entry of a judgment:
‘The Browning Interests and/or Debtor will comply with
all necessary and applicable state laws during appeal
subject to [provisions detailing specific methods of
posting supersedeas security depending on the possible
results of the judgment].
Per the agreement, the parties requested the assignment
of a retired judge to hear the case.* That judge granted a
summary judgment for Petitioners on their defensive claim
that an enforceable settlement had been reached before they
°The Fifth Circuit has held that this action satisfied the provisions of
the agreement for the remand. Browning v. Navarro, 743 F.2d. 1069 (5th
Cir. 1984).
4
filed bankruptcy. The summary judgment was reversed on
appeal and remanded for trial.’ While a trial on the merits
in this case was pending, a dispute arose between Peti-
tioners and other working interest owners in oil and gas
wells operated by Humble. When the other owners sought to
take their share of the production in kind, Holloway shut-in
some 151 producing oil and gas wells. The other working
interest owners then filed a receivership suit in the 162nd
Judicial District Court of Dallas, County, Texas, and
Respondents were named as defendants due to their claims
to the assets of Humble and Holloway. The judge of the
162nd district court, Judge Dee Brown Walker, appointed a
temporary receiver. The receiver moved, pursuant to a
mandatory Texas statute, to transfer this suit to the court
ir. which the receivership was pending. By agreement of the
sitting judges of both district courts, this case was trans-
ferred to the 162nd district court. After Judge Walker ruled
against Respondents following three weeks of hearings in
the receivership case and set this case for trial in early July,
Petitioners filed a motion to recuse Judge Walker in the
then consolidated proceedings, alleging in their motion that
his impartiality might be questioned.‘ Contrary to Peti-
tioners’ statements in the petition for certiorari, their
motion to recuse did not raise the issue of whether under
the agreement in the bankruptcy court Judge Walker should
not have heard the case because he was net a retired nor
visiting judge.
’Rrowning v. Holloway, 620 S.W.2d. 611 (Tex. Civ. App. — Dallas), writ
ref'd n.r.e. per curiam, 626 S.W.2d. 485 (Tex. 1981). On remand, a second
retired judge directed a verdict against Petitioners when they failed to
prove that they had an enforceable settlement.
‘Petitioners did not allege, as they do before this Court, that Judge
Walker was corrupt. The motion to recuse and the supplemental motion
to recuse are attached in the Appendix. (Appendix 4 at A-50 and 5
at A-55).
a
Judge Morris Rolston, a visiting judge appointed by the
presiding administrative judge, conducted a two-day ‘nearing
of all the evidence Petitioners wished to present to support
their motion to recuse. After hearing the evidence, Judge
Rolston denied the motion to recuse Judge Walker.
Thereafter, the parties proceeded to a six and one-half
week trial, which concluded with multiple jury findings
adverse to Petitioners.’ The jury found that Petitioners’
conduct damaged Respondents in the amount of
$70,000,000.00 and awarded an additional $2,000,000.00
punitive damages against Humble. Based upon the jury’s
verdict and its own additional findings, the trial court
entered a judgment granting the Respondents a constructive
trust over substantially all of the assets of Petitioners and
damages totalling $72,000,000.00. Petitioners appealed from
‘Petitioners affirmatively misstate both the jury's findings and the legal
effects of those findings under Texas law. Footnote 1 at page 3 of the
Petition states that Judge Walker disregarded jury findings that Hol-
loway owned “100% of the stock of Petitioners” and that Respondents’
“... damage claims were barred by limitations . .. .” In special issues 2
and 9 the jury found that Holloway violated his fiduciary duties to
Browning by acquiring shares of stock in Humble for his own account,
and in special issues 12 and 13 found that Holloway defrauded Browning
in connection with the acquisition of the stock in question. In special
issue 15 the jury found that Pat Holloway and others entered into a con-
spiracy to defraud the Plaintiff's of their rights as shareholders in the
company with malice. The only affirmative findings on limitations favor-
able to the Petitioners were in special issue 87 (4a & b), which related
solely to special issue 12 and to no other theory of recovery. Thus, the
jury did not find that Respondents’ damage claims were barred by limita-
tions. Contrary to Petitioners’ statement, there was no jury finding that
Pat Holloway owned any stock in Humble or Sterling Pipeline Company,
Inc. Apparently, the Petitioners assert that the jury’s failure to find affir-
matively for a party on each theory of recovery on which he has the bur.
den of proof is equivalent to a jury finding in favor of his adversary.
Stated differently, Petitioners apparently contend that the jury's negative
answers to certain special issues is an affirmative finding of the opposite
fact. This simply is not the law in Texas. C. & R. Transport, Inc. v. Camp-
bell, 406 S.W.2d 191 (Tex. 1966)
ceca alii ais bi
|
6
the judgment but did not post any supersedeas bond or
security.
Because the agreement which required a supersedeas
bond was not complied with, Respondents requested the
Petitioners and the newly appointed bankruptcy trustee,
Don Navarro,® to voluntarily turn over the property belong-
ing to Respondents under the adjudged constructive trust.
When the request was rejected, Respondents filed a
turnover suit in the United States district court, under its
bankruptcy jurisdiction, as required by the agreement, to
obtain possession of their property during the pendency of
the state appeal. In the turnover suit, Petitioners filed a
declaratory judgment proceeding as a counterclaim, asking
the United States district court to hold that the remand
from the bankruptcy court was not effective, that the state
courts lacked jurisdiction of the case, and, therefore, the
resulting judgment before Judge Walker was void because
Judge Walker was neither a retired nor visiting judge.’ Peti-
tioner’s countercliam was but the first in a litany of collat-
eral attacks by Holloway or his family on the validity of the
judgment in this case, including a civil rights case*, a RICO
‘After the jury verdict, Holloway voluntarily converted his personal
bankruptcy from a Chapter 11 to a Chapter 7 proceeding, and Navarro
was appointed as the trustee of his bankruptcy estate. By agreement of
the parties, Navarro also was appointed the trustee over the Estate of
Humble.
7Again Petitioners misstate the record in repeatedly referring to their
position in the turnover suit as merely defensive. The filing of a counter-
claim is an affirmative, not defensive action.
‘Even prior to filing his notice of appeal in this case, Holloway filed on
behalf of himself and the other Petitioners, a civil rights suit in the
United States district court alleging that Petitioners were denied due pro-
cess in this case by a conspiracy between Respondents, their counsel, the
now “corrupt” state judge and numerous third parties to rig the trial,
asking the district court to declare the judgment in this case void and
enjoin its enforcement. On March 28, 1985, the district court granted
7
case®, multiple collateral state attacks'®, and original pro-
summary judgment for Respondents, holding:
Plaintiffs have not, after years of discovery, produced sufficient evi-
dence of conspiratorial agreement or conduct by the Browning I[nter-
ests. [Appendix 1 at A-3].
Thereafter, on April 18, 1985, the district court granted summary judg-
ment for all the defendants. Ho!loway’s appeal from the summary judg-
ment is currently pending before the Fifth Circuit. In a separate appeal,
the Fifth Circuit has already held that Judge Walker has judicial immu-
nity. Holloway v. Walker, 765 F.2d 517 (5th Cir.), cert. denied — U.S. —,
106 S.Ct. 605 (1985).
*In May, 1984, Holloway, appearing as an attorney, purportedly on
behalf of his daughter and various owners of royalty interests in wells
operated by Humble, filed in the United States district court a RICO
action against the persons who were defendants in the civil rights case. As
an attorney in that case, Holloway made the same conspiracy allegations
and claimed the defendants had corrupted the 162nd District Court and
asked the court to declare the judgment in this case void and enjoin its
enforcement. Defendants’ interrogatories were answered on the basis that
the plaintiffs had no personal knowledge of the allegations, the knowledge
was that of their attorney, Holloway, and his knowledge was privileged as
work product. The RICO suit was dismissed with prejudice pursuant to
Fed.R.Civ.P. 41(b) in July, 1985.
‘After receiving adverse rulings in the spring of 1985 in the civil rights
case, the turnover suit and this case, Holloway filed two suits in June and
July of 1985 in a Lee County, Texas, district court collaterally attacking
the judgment in this case. The suits were practically identical except for
a variation of parties. Holloway, members of his immediate family, former
colleagues of Holloway, and purportedly the other Petitioners, were plain-
tiffs in the first Lee County suit. Holloway filed the second suit as the
attorney for members of his immediate family. Both suits essentially
repeated the allegations in the civil rights suit, in which summary judg-
ment had already been rendered against Petitioners, and added numerous
other allegations. Both suits asked the Lee County district court to
declare the judgment in this case void, enjoin its enforcement and enjoin
the Respondents from complying with the United States district court’s
subsequent turnover orders in the turnover suit. The Lee County court
announced that it would grant a temporary injunction prohibiting the
Respondents from receiving any property from the bankruptcy trustee,
who in 1985 had been ordered to turn over property to the Respondents.
The Lee County court did not sign such an injunction but instead entered
an order declaring the judgment in this case void. The Texas Supreme
Court stayed the Lee County court’s order and subsequently granted a
conditional mandamus directing the judge of the Lee County court to
vacate his order. Browning v. Placke, 698 S.W.2d 362 (Tex. 1985). These
Lee County cases, which were consolidated, were subsequently dismissed
for lack of jurisdiction on January 10, 1986.
8
ceedings in the Fifth Circuit."
In December, 1983, the United States district court held
that Petitioners were entitled to summary judgment because
Judge Walker was not a retired or visiting judge, and the
resulting judgment was, therefore, void. In January, 1984,
the United States district court signed a judgment for Peti-
tioners. permanently enjoining the Respondents from
attempting to enforce their judgment in this case, raising
doubts as to Respondents’ authorization to proceed in the
state appeal. Respondents appealed the United States dis-
trict court’s judgment to the Fifth Circuit and obtained an
order from the Fifth Circuit permitting them to proceed in
the state court appeal.
Respondents then filed a motion with the state court of
appeals to dismiss Petitioners’ state court appeal. The
motion to dismiss, in summary, alleged that Petitioners had
undertaken two actions which were fatally inconsistent with
'\In the appeal of the civil rights case now pending in the Fifth Circuit,
Holloway’s family and co-counsel in the Lee County cases have filed addi-
tional collateral attacks against the validity of the state court judgment in
the form of original proceedings. These motions ask the Fifth Circuit sua
sponte to declare the state court judgment void on the grounds that Hol-
loway had a previously undisclosed diplomatic immunity from suits in
Texas courts by reason of his alleged status as a Bolivian consul, that the
state court judgment was obtained in an alleged violation of Holloway’s
civil rights and related matters. In addition, Holloway’s latest wife, her-
self a convicted felon, in her papers to the Fifth Circuit stated that she
had armed herself and threatened ao do violence to anyone who
attempted to enforce the turnover orders of the United States district
court. Respondents’ suggestion for contempt and disciplinary action
based upon the making of fictitious and fraudulent claims before that
court and for unethical conduct are now pending before the Fifth Circuit.
Ho!loway has previously attempted this pattern of collateral attacks on
state court judgments in the past as an attorney. See, Atchley v. Greenhill,
373 F.Supp. 512 (S.D. Tex. 1974), aff'd, 517 F.2d 692 (5th Cir. 1975), cert.
denied, 424 U.S. 915 (1976) (Holloway’s claims of corruption by seven
then sitting members of Texas Supreme Court, two of whom are now
active judges on the Fifth Circuit, were dismissed by district court as
frivolous).
9
the further prosecution of the appeal. First, Petitioners had
asserted in the turnover suit in federal court as a basis for
relief that the state courts had no further jursidiction of the
controversy between the parties and that all judgments by
all state tribunals were void as a matter of federal law. At
the same time, Petitioners asserted as appellants in the
state court of appeals that the state courts had jurisdiction
of the case in the appeal and should render judgment in
Petitioners’ favor. Second, Petitioners had sought relief in
another forum related to an alleged error of the trial court
which was pending or could have been pending before the
state court of appeals. Under Texas law, both actions are
inconsistent with further prosecution of an appeal. The
Texas court of appeals conducted oral argument on
March 9, 1985, on Respondents’ motion.!2
During oral argument,!® Petitioners took the following
position before the Texas court of appeals:
(1) that the state district court did not have subject
matter jurisdiction of the case [Appendix 2 at A-10]:
“... the only jurisdiction anyone had of this case —
that is, power, inherent power, judicial power — was
possessed by the bankruptcy court . . .”{A-11]; “. . . the
Court, the federal court, bankruptcy court, that had
jurisdiction let this matter out on a leash. . .” [A-11];
"Also before the state court of appeals was Holloway’s so-called
“electrocution” argument. In substance, this argument was that under
federal law neither the United States district court nor the bankruptcy
court could review or, in effect, recall a case which had been remanded to
the state court, amd since the state court had violated a condition of the
remand order, thereby reinstating the automatic stay applicable to
bankruptcy proceedings, neither the state nor the federal courts had any
jurisdiction to render any adverse judjment against Holloway’s interests.
Thus, the Brownimgs and the state courts had “electrocuted” themselves.
3A transcriptiom of the arguments of Petitioners’ counsel in the Texas
court of appeals is contained in Appendix 2.
10
(2) that the bankruptcy court had the case on a string
and could pull it back whenever the bankruptcy court
desired [A-12];
(3) that the Petitioners had brought to the trial court’s
attention alleged limitation by the stipulation with
regard to Judge Walker as a visiting or retired judge
[A15, 16];
(4) “that the bankruptcy law . . . does not require that
it [the alleged limitation of authority] be brought to the
attention of the trial judge” [A-17];
(5) “the law does not require me to complain” [A-19];
(6) that the appellants’ ability to obtain further relief in
the state court was a “matter of state law” [A-19, 20];
that as “I understand it,” the Brownings were simply
seeking in the turnover suit to require Petitioners to file
a supersedeas bond or surrender the assets” [A-21];
(7) that overriding all matters of state policy and every-
thing done “. . . it’s the jurisdiction of the federal court,
and unless its rules are complied with then anything
occurring in the state courts is a nullity .. .” [A-24];
(8) that the state court of appeals could dismiss the
appeal only on the grounds there was no jurisdiction
and if the state court of appeals found there was juris-
diction, Petitioners were “entitled to bring my points of
error that occurred in the trial court .. .” [A-24] and
that he was entitled to take this action in both places,
federal court and state court at the same time. [A-25];
(9) that Judge Sanders’ ruling of no jurisdiction “
precludes this Court from taking any action at this time
... [and] in my view is dispositive of the 162nd District
Court judgment and this appeal ... [and] . . . this Court
cannot, in my view, make any other decision . . .”
{A-26].
On July 11, 1984, the Texas court of appeals dismissed the
appeal concluding:
It is difficult to foresee what other variations from state
procedures the bankruptcy court may require as condi-
tions of remand. If the “leash” theory is upheld, state
court judgments in such cases would be subject to two
11
types of review for procedural errors, one in the state
court system according to law, and another in the fed-
eral court on grounds that need not be raised in the
state court and that may be contrary to state rules of
procedure. These two types of review are fundamentally
inconsistent. To allow both would be to permit a party
to trifle with the state court by allowing it to proceed to
a judgment which he may accept or reject at will. Con-
sequently, we hold that if a party seeks review in the
federal court of a state court judgment on the ground of
an alleged violation of a condition of remand from
bankruptcy court without pointing out the alleged error
in the state court, he is barred from further relief under
state law. Having elected an inconsistent remedy in the
federal court, he is confined to the relief available there.
677 S.W.2d at 114.
Petitioners filed with the Texas court of appeals a timely
motion for rehearing, which was denied.
The Fifth Circuit was informed of the Texas court of
appeals’ dismissal of the state appeal while it considered
Respondents’ appeal of the United States district court’s
judgment in the turnover case. In its opinion reversing the
United States district court, the Fifth Circuit noted that
Petitioners’ state appeal had been dismissed by the Texas
court of appeals for trifling with the state courts and stated
that it, like the state court of appeals, condemned a practice
of trifling with the state courts. Browning v. Navarro, 743
F.2d 1069, 1082 n.33 (5th Cir. 1984).
Petitioners, upon receipt of the Fifth Circuit’s opinion,
had only one week left to file an application for writ of error
to the Supreme Court of Texas. Instead, Petitioners filed a
Motion to Withdraw Judgment with the Texas court of
appeals, urging that court to exercise its “plenary power” to
grant them such relief. The Texas court of appeals, acting
exactly as requested in Petitioners’ motion, granted an ex
parte order purporting to vacate its July 11, 1984 judgment
of dismissal and to reinstate the case. Subsequently,
12
Respondents filed motions with the Texas court of appeals
contending that Petitioners had filed an unauthorized and
untimely second motion for rehearing in conflict with
mandatory time requirements of the Texas Rules of Civil
Procedure and that the court of appeals did not have ple-
nary power to act contrary to the rules of civil procedure.
Respondents also asked the court to issue its mandate to the
lower court on the basis that the appeal was concluded by
Petitioners’ failure to meet the mandatory time require-
ments of the rules.
On March 26, 1985, the Texas court of appeals, en banc,
held that Petitioners’ motion “was obviously wrongfully and
purposely denominated and constituted nothing more than
a second motion for rehearing which could not be legally
filed with this court after fifteen days...” of the order over-
ruling the motion for new trial as specifically mandated by
Rule 21c of the Texas Rules of Civil Procedure. The court
held that its plenary power did not permit it to act contrary
to the rules of civil procedure. The court concluded that its
order of October 4, 1984, vacating the judgment of the court
of July 11, 1984, was improperly granted and should be
vacated. The court also granted Respondents’ motion to
issue its mandate immediately.
Petitioners filed another motion for rehearing with the
court of appeals, which was overruled, and filed two sepa-
rate applications for writ of error to the Supreme Court of
Texas. Petitioners also filed with the Supreme Court of
Texas a motion for leave to file a petition for writ of man-
damus to require the Texas court of appeals to vacate its
mandate and to enjoin any enforcement of the judgment.'¢
'*Almost concurrently with the court of appeals’ decision, the United
States district court granted a partial judgment in the turnover suit for
Respondents on April 2, 1985, in accord with its earlier opinion of
March 21, 1985, holding that the Respondents were entitled to immediate
13
The Supreme Court of Texas denied the Petitioners’
request. Subsequently, while their petitions for writ of error
were pending before the Supreme Court of Texas, Peti-
tioners filed multiple requests for the Supreme Court to
order the Texas court of appeals to vacate its mandate and
to enjoin Respondents from enforcing the judgment in this
case. The Supreme Court of Texas did not grant any such
relief. On July 3, 1985, the Supreme Court of Texas denied
the application for writ of error and subsequently denied a
motion for rehearing.
REASONS FOR DENYING THE WRIT
I. THERE IS AN ADEQUATE, INDEPENDENT NON-
FEDERAL GROUND TO SUPPORT THE JUDGMENT.
Petitioners ask this Court to grant its writ of certiorari to
review the original judgment of the Texas court of appeals
dismissing their appeal in this case dated July 11, 1984.
However, that judgment was vacated by the Texas court of
appeals’ order dated October 4, 1984.
Five months later, on March 26, 1985, the Texas court of
appeals, en banc, set aside its order of October 4, 1984, rein-
stated the judgment of July 11, 1984, and directed immedi-
ate issuance of mandate. [Petitioners’ Appendix I, at 117a].
The Texas court of appeals judgment of March 26, 1985,
was based solely on an interpretation of the Texas Rules of
Civil Procedure.'® The Texas court of appeals held that the
Petitioners filed an untimely second motion for rehearing
possession of the property over which they had a constructive trust dur-
ing the pendency of the state court appeal. Petitioners repeated requests
to the Supreme Court of Texas to enjoin any enforcement of the judg-
ment sought to prohibit compliance with the United States district court’s
turnover orders.
‘Even Petitioners find no constitutional grounds to attack the
March 26, 1985, judgment and supporting opinion of the Texas Court of
Appeals, which rests solely on interpretation of state law.
14
without complying with the rules permitting proper motions
for an extension of time for filing motions for rehearing.
The court held that under Texas law a court of appeals
could not exercise its plenary power in derogation of the
strict time limitation imposed by the Texas Rules of Civil
Procedure for filing motions for rehearing or requesting
extensions of time for filing such motions. Humble Explo-
ration Company v. Browning, 690 S.W.2d 321, 328 (Tex.
App. — Dallas 1985, writ refd n.re.). [Petitioners’
Appendix E, at 81la-82a].
Thus, the March 26, 1985 judgment of the Texas court of
appeals is independently supported by the Petitioners’ fail-
ure to observe the Texas procedural rules necessary to seek
a review of the prior July 11, 1984 judgment. The Texas
Supreme Court’s denial of a writ of error approves that
judgment of the Texas court of appeals. See, Gammel States-
man Publishing Co. v. Ben C. Jones & Co., 206 S.W. 931 (Tex
Comm’n App. 1918, holding approved).'*
'6Petitioners ignore the March 26, 1985 judgment and supporting opin-
ion of the Texas court of appeals. They apparently argue in a footnote
that the Supreme Court’s refusal to grant Respondents’ motion to strike
Petitioners’ application for writ of error somehow overrules the Texas
court of appeals’ March 26, 1985 judgment and opinion. There is no basis
in Texas law to support this argument. A more likely explanation for the
Texas Supreme Court's orders is its intent to approve both opinions of
the Texas court of appeals.
On March 26, 1985, the mandate of the Texas court of appeals issued
immediately pursuant to its judgment. Despite Petitioners’ repeated
requests, the Supreme Court of Texas consistently refused to order the
Texas court of appeals to vacate or withdraw its mandate. If the Supreme
Court of Texas had determined that the March 26, 1985 opinion and judg-
ment was incorrect as a matter of Texas law, it would have been obligated
to require the court of appeals to vacate its mandate.
The Fifth Circuit in Holloway’s appeal of the civil rights case has held
that the federal courts must give full faith and credit to the finality of the
mandate of the Texas court of appeals. Holloway v. Walker, Order in No.
85-1289 (5th Cir. August 12, 1985)
15
It is a settled rule of this Court that where the judgment
of a state court rests upon two grounds, one of which is
non-federal in character, its jurisdiction fails if the non-fed-
eral ground is independent of the federal ground and ade-
quate to support the judgment. Fox Film Corporation v.
Muller, 296 U.S. 207, 210, (1935); Board of Supervisors of
Fairfax County, Virginia, v. Allman, 423 U.S. 940, (1975);
Minnesota v. Andrews, 419 U.S. 881, (1974). The court of
appeals’ March 26, 1985 judgment, based upon Petitioners’
violations of mandatory time requirements set forth in the
Texas Rules of Civil Procedure,'’ rests upon separate, ade-
quate state grounds.'®
Il. THE RECORD DOES NOT RAISE THE QUESTIONS
PETITIONERS PRESENT.
In a desperate effort to attract the attention of this Court,
Petitioners misstate and attempt to reconstruct the record
of this case in several important instances, so as to state
hypothetical questions which are not otherwise present in
this case. First, Petitioners claim this record requires review
of a litigant forced to trial before a corrupt and biased judge.
As acorollary, Petitioners contend that this Court is obliged
to accept their allegations of corruption as true, whether or
not they are raised by the record. Second, Petitioners assert
that the Texas courts have decided their case upon novel
'7Petitioners’ claim that it is undisputed that they have fully complied
with every procedural aspect of applicable Texas Rules of Civil Procedure
is unwarranted. While Petitioners may have complied with the applicable
rules in initiating their appeal, the court of appeais has found that they
did not comply with the applicable rules after the court’s July 11, 1984
judgment in order to preserve the same issues for subsequent appellate
review. ;
'8There is no contention that the Texas court of appeals made its
March 26, 1985 decision in an improper attempt to deprive Petitioners of
an appeal of federal issues.
16
and unprecedented interpretations of Texas procedure,
which offend due process and, finally, that this case pre-
sents some example of unfair or disparate treatment of indi-
gents so as to justify review. In fact, none of these issues is
presented by the record in this case.
1. Petitioners’ Claims of a Trial Before a Biased and
Corrupt Judge.
Only after Judge Walker had ruled adversely to them in
the receivership proceedings and set this case for trial did
Petitioners complain about his impartiality. Even then,
their motion to recuse alleged that a person might reason-
ably question the appearance of impartiality. There is no
claim in their motions that Judge Walker was corrupted.
The Petitioners’ motion was heard for two days by an inde-
pendent visiting judge. There is no suggestion in their brief
to the court of appeals, nor even in thier petition to this
Court, that they did not receive due process before Judge
Rolston in the consideration of that motion.
Perhaps the best evidence of Petitioners’ actual com-
plaints in this case is found in their brief to the Texas court
of appeals, pertinent portions of which are attached in the
Appendix. In that brief, although they claimed that both
Judge Walker and Judge Rolston had erred in failing to
recuse Judge Walker, the Petitioners made no affirmative
claims whatever that either judge was corrupt. [Appendix 3
at A-35-49]. This appeal was taken in 1982, and the record
in this case has not changed since that time. What has hap-
pened is merely that Petitioners have substituted for the
issue presented to the Texas appellate courts in this case
their unsworn and unsubstantiated allegations in the civil
rights case, the RICO case and the Lee County cases to the
effect that they have had their property taken from them in
a sham trial resulting from a conspiracy among the counsel,
17
the judge, and apparently even the appellate courts of
Texas, as well.'9
Recognizing that the record simply does not support this
position, Petitioners assert that Griffin v. Illinois, 351 U.S.
12, 16 (1956), requires this Court to accept such assertions
as true for the purpose of granting review. Griffin v. Illinois
is not applicable to this case. Griffin involved claims of crim-
inal defendants who alleged that there was reversible error
in the trials resulting in their conviction, but they were pre-
cluded from showing any error because they could not finan-
cially afford a transcription of the trial proceedings to
obtain a meaningful appeal. Under those circumstances
where no record was available and the very issue under
review was the necessity for a record to receive a meaningful
appellate review, this Court assumed that the defendants’
contentions of reversible error were true.
In this case there is a voluminous appellate record. Thus,
it is not necessary to assume that Petitioners’ allegations
are correct without a review of that record. Moreover, both
the July 11, 1984 opinion of the court of appeals and the
statements by members of the court during the oral argu-
ment show that the court of appeals had extensively
reviewed the record before it and was knowledgeable about
Petitioners’ various allegations of error. What public pur-
pose is served by assuming allegations to be true that are
shown by the record to be false?
Moreover, assuming arguendo that the Griffin standard
would apply, the facts which this Court would then accept as
‘Petitioners argue that in the civil rights case, the United States dis-
trict court found there was competent evidence that Judge Walker and
one of Respondent's counsel were engaged in a conspiracy to rig the out-
come of the trial. Contrary to the impression given by Petitioners, the
United States district court has made no finding that there was any con-
spiracy; it simply held that there was a sufficient question on“... an
inference of a conspiratorial agreement . . .” to prevent granting summary
judgment to Respondent's counsel. [Petitioners’ Appendix H, at 112a.] In
contrast, the United States district court did hold that the Respondents
were not involved in any conspiracy claimed by Petitioners. {Appendix 1,
at A-3.]
18
true would be the allegations of Petitioners in their brief to
the Texas court of appeals and not their allegations in the
civil rights case as brought forward to this Court in the
petition.2° Indeed, Petitioners do not challenge the due pro-
cess of the recusal hearing before Judge Rolston at all.
Thus, their suggestion that they were forced to trial before
a biased judge without any opportunity for an independent
review of the trial judge’s impartiality is not supported by
the record. Due process does not require additional review
of Judge Rolston’s decision.
2. Petitioners’ Allegations of Novel and Unprece-
dented Procedural Determinations.
Petitioners’ second claim that the Texas court of appeals’
dismissal of their appeal was based on novel procedural
grounds is totally contrary to extensive prior Texas case law
and likewise is not supported in this case. The court of
appeals dismissed the Petitioners’ appeal because Peti-
tioners sought two fundamentally inconsistent forms of
“The court can compare Petitioners’ allegations in this Petition to the
claims presented to the ‘Texas court of appeals in their brief to that court.
[Appendix 3 at A-35 et seg.] Petitioners’ claim that Judge Walker was a
biased and corrupted judge follows a families pattern. When the suit was
initially filed, Petitioners claimed that the original trial judge, Judge
Snodgrass, had a “peculiar and unusual relationship” with Respondents’
counsel: after Judge Walker made adverse rulings in the receivership suit,
Petitioners claimed that Judge Walker lacked the appearance of impar-
tiality; after Judge Rolston determined there were no grounds to recuse
Judge Walker Petitioners claim that his decisions were contrived and
improper: after Judge Walker presided in the trial resulting in a verdict
against them, Petitioners alleged that Judge Walker was biased and cor-
rupted; and now in this Court, Petitioners claim that the Texas court of
appeals and, in effect, the Supreme Court of Texas, have deliberately
mischaracterized the record and entered a judgment contrary to all previ
ous Texas case law in order to preclude Petitioners from obtaining any
appellate review on the merits
Such allegations of wholesale misconduct by both trial and appellate
judges are consistent with prior attacks that Holloway has made on
courts that ruled against him. See, footnote 11, supra
19
review in an attempt to permit them to accept or reject the
judgment of the Texas courts at will. The court’s holding
that parties lose their right to an appeal by conduct incon-
sistent with their appeal was not novel.
This principle was clearly set forth over fifty years previ-
ously in Winters Mut. Aid Ass’n Circle No. 2 v. Reddin, 49
S.W.2d 1095, 1096 (Tex. Comm'n App. 1932) (holdings
adopted), in the following language:
The rule is well settled that, if it appears that the mat-
ters complained of in the equitable suit to vacate the
original judgment could have been presented to the trial
court in the original proceedings, and brought up by
appeal for review, a suit in equity to vacate the judg-
ment would not lie. This rule rests upon the principle
that it is the policy of the law to avoid a multiplicity of
suits. [citations omitted]. The rule is also well established
that the right to appeal or to bring error may be waived by
pursuing a remedy inconsistent with an appeal or writ of
error. 3 Tex.Jur. p. 159, § 100. The foregoing rules will
not be invoked in this case, unless it is shown that
plaintiff in error has pursued a remedy inconsistent with
an appeal or writ of error, and that the matters com-
plained of in the suit in equity to set aside the original
judgment could have been presented to the trial court
for ruling thereon, and brought up by appeal.?' (empha-
sis added).
Indeed, the compendium of Texas law, TEXAS JURISPRU-
DENCE, has at least since 1959 specifically cautioned, “The
*\Petitioners suggest without analysis that Reddin is somehow inappli-
cable because the second proceedings referred to in that case involved a
direct review by an equitable bill of review as opposed to the collateral
attack pursued by Petitioners in this case. This distinction is unavailing.
If anything, the teachings of Reddin apply with even greater force to col-
lateral attacks because the Supreme Court of Texas has consistently held
that the only proper method of attacking an erroneous judgment after the
time for direct appeal has expired is by means of bill of review, not a
collateral attack. See, Middleton v. Murff, 689 S.W 2d 212 (Tex. 1985).
aera nanan it
20
right to appellate review may be lost by the pursuit of an
inconsistent remedy,” citing Reddin. 4 TEX.JUR.3d, Appellate
Review, § 163, at 261 (1980); 3 TEX.JUR.2dREV., Appeal and
Error — Civil Cases, § 195, at 597 (1959).
Petitioners’ remedy in the turnover suit was inconsistent
‘with the further right of state appeal, under Reddin,
because: (1) Petitioners asserted in the federal court that
the state courts had no jurisdiction over the case because of
an alleged violation of the remand order and, thus, that all
state proceedings were void, while at the same time assert-
ing in the state courts that the state appellate court did, in
fact, have jurisdiction and should proceed to adjudicate the
appeal or delay its adjudication, as Petitioners might
request. Obviously, these two positions and the remedies
sought are at fatal variance. Either the state court has juris-
diction to proceed or it does not, and a party is entitled to
but one adjudication of the validity of that contention. Sec-
ond, by raising a matter which was or could have been raised
in the state trial court, i.e., compliance with the conditions
of remand and whether or not objection was made on this
ground, Petitioners directly invaded the actual or potential
jurisdiction of the state court of appeals.” Having originally
obtained a favorable decision in the federal courts, which
precluded further state review of the validity of the judg-
ment,23 Petitioners seek now to complain that the Texas
2Petitioners contended in oral argument before the state court of
appeals [Appendix 2 at A-15, 16] and before this Court {[Petition, at 6],
that they did, in fact, raise these issues before Judge Walker in the state
trial court. The state court of appeals found as a fact that they did not.
677 S.W.2d at 113. See discussion, infra. Whether Petitioners did, in fact,
or could have raised the issues is not controlling. Under Reddin, whether
the issue was or could have been, pending before the court of appeals,
collateral proceedings to determine the same issue are inconsistent with
the further prosecution of an appeal and are, thus, prohibited.
23The decision of the United States district court was entitled to imme-
diate preclusive effect in the state courts as res judicata under this Court’s
decision in Reed v. Allen 286 U.S. 191 (1932). Thus, it would have been
improper for the state court of appeals to have proceeded further. See
discussion, infra at p. 24.
21
court of appeals’ correctly disposed of the case under the
circumstances Petitioners presented to it.
Petitioners also contend that they enjoy an unbridled
right to obtain review of the validity of state court proceed-
ings in the lower federal courts. This Court has held to the
contrary in District of Columbia Court of Appeals v. Feldman,
460 U.S. 462, 482 (1983), where it held that lower federal
courts possess no power whatever to sit in direct review of
state court decisions.*4 The Court specifically stated:
If the constitutional claims presented to « United
States District Court are inextricably intertwined with a
state court’s denial in judicial proceedings of a particu-
lar [party’s claim for relief], then the District Court is
in essence being called upon to reveiw the state court
decision. This the District Court may not do. 460 U.S.
at 483-484 n. 16.
3. Petitioners’ Indigency Claims.
Petitioners next imply that Texas bars appeals in civil
cases to defendants who cannot provide a supersedeas bond
**The issue is not one of “punishment” of Petitioners for asserting fed-
erally protected rights. Petitioners were free to make their Kalb v. Feuer-
stein 308 U.S. 433 (1940), argument before the state trial court or the
state court of appeals if they wished to do so. This Court has consistently
held that state courts are equally qualified to decide issues of federal law
when raised in state proceedings. Gulf Offshore Co. v. Mobil Oil Co., 453
U.S. 473 (1981). Here, however, the Petitioners, made a tactical choice to
reduce their Kalb v. Feuerstein claim to judgment in the United States
district court, foreclosing a state court review of the same issues. Had
Petitioners attempted a similar action within the state system by filing a
collateral attack in a Texas district court, the court of appeals could have
dismissed the appeal or prevented actual or potential interference with its
jurisdiction by the issuance of a writ of prohibition. Taft v. Schraub, 557
S.W.2d. 172 (Tex. Civ. App. 1977). However, state courts are without
authority to enjoin the litigants from asserting whatever position they
like in the federal courts. Donovan v. City of Dallas 377 U.S. 408 (1964).
Therefore, the only action available to the Texas court of appeals was to
dismiss the appeal.
22
set by the trial court.25 Again, such-an issue is not raised by
either the court of appeals’ opinion or the record.
The right of a party to appeal an adverse final judgment,
whether granted by statute or state constitution, is not syn-
onymous with any right to stay proceedings to enforce a
judgment pending appeal. Texas courts, like their federal
counterparts, permit a stay of proceedings to enforce the
judgment when the appellant gives an approved supersedeas
bond which protects the rights of the appellees to effectuate
the judgment if appellant fails to reverse the judgment on
appeal. Compare Fed.R.Civ.P. 62 with Tex.R.Civ.P. 364. A
party’s ability to post supersedeas is totally distinguishable
from a party’s ability to take an appeal. There is no sugges-
tion in this record that Petitioners were not permitted by
the Texas courts to appeal the judgment against them
because they were unable to post a supersedeas. Indeed,
Petitioners admit that they did, in fact, appeal, although
they never posted any supersedeas bond. Thus, this issue is
entirely hypothetical.”6
°5In their argument, Petitioners compare themselves with impoverished
crimina! defendants whose poverty prevents them from taking an appeal.
Petitioners were not impoverished and there is nothing in the record to
indicate that lack of funds prevented Petitioners from adequately prepar-
ing their appeal in this case. Indeed, the record is voluminous and Peti-
tioners’ brief to the court of Appeals exceeded 500 pages and presented
211 points of error.
“6Petitioners intimate that Judge Walker set the supersedeas bond at
an improperly high amount to prevent the Petitioners from posting it.
The record does not support this allegation. Tex.R.Civ.P. 364 provides
that the amount of the supersedeas bond, with respect to money damages,
shall be at least the amount of the judgment, interest and costs; when
judgment is for recovery of land or other property, the bond is to pay for
the value of the rent or hire of such property during the appeal in an
amount estimated by the trial court. When judgment is for recovery of
specific personal property, the supersedeas amount is to be fixed by the
court, not less than the value of said property, on the day of judgment.
The judgment awarded Respondents $72,000,000.00 damages and exten-
23
Moreover, even if an abstract constitutional point on indi-
gency could be postulated in this case, Petitioners can
present no such claim. Petitioners waived that claim in this
case by leaving the protection of the bankruptcy court and
its automatic stay for financially troubled defendants, and
further by agreeing as a condition of remand to provide
appropriate supersedeas protection if they lost in the state
trial court. Petitioners, being dissatisfied with the agree-
ment they reached in the bankruptcy court for remand,
cannot now convert their contract difficulties into
constitutional claims.
III. Petitioners Ask This Court To Redetermine a Fac-
tual Issue.
The Texas court of appeals dismissed the Petitioners’
appeal because of the inconsistent review sought and
obtained by Petitioners in federal court of a matter that
could have been but was not presented to the state trial
court. The court of appeals specifically held that it had
searched the voluminous record after asking Petitioners for
a specific citation and did not find the claimed objection has
been properly presented or preserved.
Petitioners claim that the Texas court of appeals finding
of fact regarding the record is “a mischaracterization of the
record.” [Petition at 6 n. 2.] Notably, Petitioners do not
sive properties and corporate stock that Petitioners admit was worth
$50,000,000.00. Pursuant to Tex.R.Civ.P. 364, the trial judge was required
to set a supersedeas bond at $122,000,000.00, plus an additional reason-
able amount for interest and damages. Post-judgment interest in Texas in
1982 was nine percent (9%). Even assuming that the court costs are neg-
ligible, the additional $8,000,000.00 would only cover interest for 266 days.
The supersedeas bond was low, not high. Moreover, Tex.R.Civ.P. 365
authorizes the state appellate court to review the amount of a bond fixed
by the trial court for excessiveness. There is no suggestion by Petitioners
that they ever sought to have the amount of supersedeas bond reviewed
by the state appellate courts.
24
favor this court with an explanation of how the Texas Court
of Appeals has mischaracterized the record, or more pre-
cisely, where in the voluminous record Petitioners presented
and preserved the issue. Instead they seek to have this
Court review the voluminous record to determine whether it
disagrees with the Texas court of appeals’ finding that Peti-
tioners failed to present properly and to preserve the alleged
point of error in the state courts. This court does not grant
certiorari to review evidence or to determine or discuss
specific facts. United States v. Johnston, 268 U.S. 220, 227,
(1925).
IV. The Dismissal of Petitioners’ Appeal was Consis-
tent with Policies Announced by This Court.
There are substantial policy reasons supporting the Texas
court of appeals’ dismissal of Petitioners’ appeal under the
circumstances. When Petitioners sought and obtained a
judgment in the United States district court holding that the
state courts had no jurisdiction of this case, this action
raised significant issues of res judicata, comity, mootness,
election of legal recourse and judicial capabilities. The
United States district court’s judgment in the turnover suit,
which held that the state district court was without jurisdic-
tion and the judgment in this case was unenforceable, was
entitled to immediate preclusive effect under the doctrine of
res judicata as a matter of substantive federal law. Reed v.
Allen, 286 U.S. 191 (1932). Thus, it would be a violation of
both the federal standards of res judicata and the doctrine of
comity between state and federal courts for the Texas court
of appeals to have attempted to address further the validity
of the judgment. Moreover, the Texas court of appeals could
not have proceeded to hear the merits of the appeal because
the judgment of the United States district court had ren-
25
dered moot the issue of the validity of the judgment. Texas
courts have no jurisdiction to render advisory opinions.
United Services Life Insurance Company v. Delaney, 396
S.W.2d. 855 (Tex. 1965).
Finally, the necessity to utilize limited judicial resources
of Texas in the most effective manner required the dis-
missal.2”7 With the floodtide of cases burdening the courts,
appellate courts cannot afford to delay consideration of
appeals before them so as to permit parties to initiaté collat-
eral attacks on the judgment in other forums and pursue
those proceedings to their ultimate resolution while the orig-
inal appeal waits in the wings. Due process of law does not
require the courts to await the pleasure of litigants on the
ultimate outcome of their tactical decisions to resolve the
cases on their dockets. Having already obtained a preclusive
decision in their favor, Petitioners did not then seek a reso-
lution of their state appeal by the Texas court of appeals.
Instead they asked the state court of appeals to stand by
indefinitely until such time, if ever, as Petitioners might
desire to again avail themselves of the services of the state
judiciary. Due process does not require the state appellate
courts to accept such demands.
Each of these policies supported the decision of the court
of appeals to dismiss the appeal when Petitioners took
action inconsistent with their rights to continue that appeal.
Furthermore, this Court has previously announced in a vari-
ety of situations that a person may lose his right to seek
affirmative relief by abusing the judicial system. See, Link v.
"The panel assigned to this case for the Texas court of appeals was
specially appointed pursuant to a recent statutory authority. 677 S.W.2d
at 111. Two members of the panel were retired appellate justices, who
volunteered to continue serving the Texas judicial system. Realistically,
such a panel could not be maintained indefinitely.
26
Wasbash R.R. Co., 370 U.S. 626 (1962) (dismissed for failure
to attend pretrial conferences); Nat'l Hockey League uv.
Metropolitan Hockey Club, Inc., 427 U.S. 639 (1976) (dis-
missed for failure to obey dicovery orders); Estelle v. Dor-
rough, 420 U.S. 534, reh’g denied 421 U.S. 921 (1975)
(dismissal of appeal of prisoners who had escaped).
Indeed, in National Union of Marine Cooks & Stewards v.
Arnold, 348 U.S. 37 (1954), the Court held that due process
did not prevent a state supreme court’s dismissal of an
appeal because the appellant refused to deliver to a court-
appointed receiver bonds which appellant owned, which
were located in another state, and which were the only
assets upon which the state court judgment could be col-
lected. This Court concluded, 348 U.S. at 45:
Viewing the dismissal of petitioner’s appeal in light of
its reasonableness in sustaining the effectiveness of a
state’s judicial process, as against the rights of a judg-
ment debtor, without filing supersedeas bond, to refuse
to comply with orders safeguarding the value of that
judgment, we find nothing that violates due process of
law.
Here also the Petitioners sought to render the state judicial
process inetfective unless it ruled in their favor. The court
of appeals did not violate due process when it acted to pro-
tect the integrity of the Texas judicial system. As this Court
stated in Nat’l Hockey League, 427 U.S. at 643, dismissal is
appropriate “.. . not merely to penalize those whose conduct
may be deemed to warrant such a sanction, but to deter
those who might be tempted to such conduct in the absence
of such a deterrent.”
27
CONCLUSION
FOR THESE REASONS, the Petition for Writ of Certio-
rari should be denied.
Respectfully submitted,
4,
R. JACK AyrEg/i WA
4350 Beltway Drive
Dallas, Texas 75244
(214) 991-2222
Counsel of Record for
Respondents
THOMAS V. Murto III
LARRY B. DWIGHT
LAW OFFICES OF
R. JACK AYRES, JR., P.C.
4350 Beltway Drive
Dallas, Texas 75244
(214) 991-2299
Additional Counsel for
Respondents
28
CERTIFICATE OF SERVICE
I hereby certify that on this/3Aday of February, 1986,
three copies of Respondents’ Brief in Opposition were
mailed, postage prepaid, to both Mr. J. Bruce Bennett, of
Reynolds, Allen & Cook, Incorporated, 3300 Allied Bank
Plaza, Houston, Texas 77002, attorneys for Petitioners, and
to Mr. Joseph Geary, Geary, Stahl & Spencer, 2800 One
Main Place, Dallas, Texas 75250, counsel for Robbie Hol-
loway. I further certify that all parties required to be served
have been served.
V7 La
rie
7
APPENDIX
APPENDIX 1
IN THE
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
Civil Action No. 3-82-1846-H
Pat S. HOLLOWAY, et al.,
Plaintiffs
v.
JUDGE DEE BROWN WALKER, et al.
Defendants
MEMORANDUM OPINION AND ORDER
This case is before the Court on Defendants The Brown-
ing Interests" Motion for Summary Judgment and Motion
to Dismiss, filed January 29, 1985; Plaintiffs’ Response, filed
February 21, 1985; and Defendants’ Rejoinder, filed
March 13, 1985.
Defendants have adopted the Motion for Summary Judg-
ment of Defendant R. Jack Ayres, Jr. Rather than repro-
duce here the lengthy ruling on that Motion, the Court
hereby incorporates the Memorandum Opinion and Order,
filed March 11, 1985. The Court granted the Motion with
respect to Plaintiffs’ procedural due process claims, and
denied it in all other respects.
‘Jane H. Browning, Michael G. Starnes. Catherine Agnes Land Star-
nes. Katherine Browning Cook, Averille Browning Dawson, William
Browning [TI, Winifred Fallon Browning, and Robert Browning.
A-1
neem ita iia aii
Defendants here argue that there is no summary judg-
ment evidence linking them with the alleged conspiracy to
deprive Plaintiffs of their constitutional right to a fair trial.
They argue that they cannot be held vicariously liable for
any actions of their attorneys, Defendants Kelsoe and
Ayres.
Michael Starnes and Jane Browning have provided affi-
davits stating that they “handled all of the direction and
guidance to the attorneys in [the state cases].” They avow
that they had no ex parte contacts or communications with
Judge Walker’, and never “authorized either of our attor-
neys or any other party to make any improper effort to
obtain Judge Walker to rule in any manner in our behalf in
either the Browning v. Holloway case or the Fairway Land
case”. Further, they state that they “have not participated in
nor have I or anyone else representing the Browning Inter-
ests authorized our attorneys or anyone to manipulate the
docket, conspire with others or in any other manner attempt
to improperly affect the result of either the Browning uv.
Holloway case or the Fairway Land case.
Plaintiffs have produced no evidence rebutting this denial.
They have cited no acts allegedly committed in furtherance
of the conspiracy by the Brownings. Although there cer-
tainly is a line of authority for supervisory liability under
§ 1983, there is no fact issue as to any improprieties in con-
trol or direction of the attorneys, see Rizzo v. Goode, 423 U.S.
362 (1976), personal participation, affirmative promotion of
a policy which sanctions the type of action which caused the
violation, see Duchesne v. Sugerman, 566 F.2d 817, 830-31
(2d. Cir. 1977), or violation of an explicit duty to supervise.
See Howard v. Fortenberry, 723 F.2d 1206 (5th Cir. 1984).
Plaintiffs have presented evidence pertaining to alleged ex parte meet-
ings involving Starnes on May 14, 1982, and Jane Browning on August 31,
1982. The May meeting, prior to the filing of the lawsuits, was in no sense
improper. see Gillette, Weiss, Musselwhite and Avres affidavits, filed with
Defendant APP Entities’ Motion, and is not relevant to the civil rights
claim as defined by this Court. Jane Browning was not present a. the
August meeting. Nye Affidavit.
A-2
Although the Court recognizes the importance in a civil
rights conspiracy action to allow a plaintiff to prove all per-
missible inferences from actions shrouded in secrecy, see
Ferguson v. Omnimedia, Inc., 469 F.2d 194, 198 (1st Cir.
1972), Plaintiffs have not, after years of discovery, produced
sufficient evidence of conspiratorial agreement or conduct
by the Browning Interests.
Accordingly, Defendants’ Motion for Summary /udgment
should be, and hereby is, GRANTED IN PART # th respect
to the federal claims and RESERVED with respect to the
pendent state-law claims.
SO ORDERED.
DATED: March 28, 1985.
/s/ BAREFOOT SANDERS
Barefoot Sanders
United States District Judge
A-3
APPENDIX 2
No. 05-82-01378-CV
IN THE
COURT OF APPEALS
FOR THE
FIFTH SUPREME JUDICIAL DISTRICT
OF TEXAS AT DALLAS
HUMBLE EXPLORATION COMPANY, INC. et al.,
Appellants
U.
JANE H. BROWNING, et al.,
Appellees
ORAL ARGUMENT ON APPELLEES’
MOTION TO DISMISS
BE IT REMEMBERED that on the 9th day of March,
1984, the above entitled cause came on for hearing in open
court before a special panel appointed by the Honorable
Jack Pope, Chief Justice of the Supreme Court of Texas,
consisting of Chief Justice Clarence Guittard, Retired Jus-
tice Claude Williams, and Retired Justice Quentin Keith, at
the Dallas County Courthouse, in the City of Dallas, County
of Dallas and State of Texas, and the following proceedings
were had.
A-4
APPEARANCES
Mp. Louis P. BICKEL
Bickel & Case
4300 Thanksgiving Tower
Dallas, Texas 75201
(214) 651-8545
Counsel for the Appellants
Mk. R. JACK AYRES, JR.
R. Jack Ayres, Jr., P.C.
4350 Beltway
Dallas, Texas 75234
(214) 991-2222
Counsel for the Appellees
ALSO PRESENT:
Mr. Pat S. HoLLoway Pro Se
Mr. TIMOTHY VINEYARD Attorney for Don Navarro,
Trustee
Mr. G. LEROY STREET Attorney for Robbie Holloway
A-5
INDEX
Page
eS ree renee re Omitted
Fe Ty DEN. TOGO ak vc vik vaca waced anes A-10
Rebuttal Argument by Mr. Ayres............... Omitted
A-6
PROCEEDINGS
CHIEF JUSTICE GUITTARD: We have another chapter
in this rather extraordinary saga. The — I think probably
the issue before us today is whether we dismiss the appeal or
whether we abate the appeal and postpone further consider-
ation of the case until the federal courts finally determine
whether Judge Sanders’ order holding the judgment
appealed from here void is a valid judgment so far as the
federal courts are concerned.
And since I guess the greater burden is on the party here
that is asking us to dismiss the appeal, we will treat the
Appellee as the moving party here and we’ll hear from him
first and then give him an opportunity to rebut.
Now, before we go further I'd like to say that we hereto-
fore entered an order that all — that all matters filed before
us would be filed by Mr. Bickel on behalf of all Appellants
and we note here that Mr. Holloway individually has filed a
motion on January 17th, which I don’t think really affects
what we’re going to be doing here anyway, but in any event
for the record we will strike that motion because it’s not
anything — because it’s in violation of our previous order.
Now, we have this perspective on the problem. Judge
Sanders’ order holds that the judgment appealed from here
is void because the trial court had no jurisdiction because
the trial proceeded in violation of the conditions in the stip-
ulation upon which the order of remand of the case was
made from the bankruptcy court.
We have searched this record and have failed to find any
indication that that matter was asserted before Judge
Walker or in the trial court to any extent.
There was considerable motions and countermotions in
the — at the trial court level as to whether the 162nd Court
should — could properly hear the case in view of the prior
pendency of the action in the 193rd Court, and this — and
points were raised there and preserved here as to the propri-
ety of the 162nd Court proceeding rather than the 193rd
Court.
A-7
We understand that there was a motion made in the
162nd Court in the case which was already pending there
brought by Fairway Corporation or some third party to con-
solidate the present case which was filed in the 193rd Court
with the case filed in the 192nd (sic) Court.
And we examined the record in that case to determine
whether or not there was any objection — or there was
objection, but whether there was objection on the ground
that — that it was — that the appeal could only be — that
the case could only be heard before a retired or visiting
judge under the federal court’s order. We didn’t find any-
thing of that sort and, if there was some, we would like for
you to direct our attention to it.
Actually, of course, the — that point didn’t really affect
the consolidation because whether or not the case proceeded
in the 162nd Court was quite apart from the question of
whether Judge Walker was qualified under the federal
court’s order to hear the case because, even if it were —
were tried — even if it were consolidated into the 162nd
Court, then of course Judge Walker, if he had acted in
accordance with that stipulation, could have asked for a vis-
iting judge to come in and try the case.
We don’t find in the record any motion made before
Judge Walker asking him to bring in a visiting judge for the
purpose — for the reason stated in the federal court’s order
and the stipulation.
So, as far as we can tell — of course there was an order,
there were proceedings to disqualify Judge Walker for bias
and other matters, but we didn’t find that this matter was
ever raised in the trial court and we don’t really know
whether that point — we don’t really think that matter was
properly raised before this court.
The only point of error that purports to come anywhere
near close to it is point 20 or 21 I think it is, and we looked
at the argument under that point and it nowhere asserts this
stipulation and that the — the trial before Judge Walker
rather than before a visiting or retired judge was in — con-
trary to the federal court’s order.
A-8
So we have an extraordinary situation to where the
Appellants here have gone into the federal court and have
attacked the order appealed from, for lack of jurisdiction on
a ground that wasn’t presented to the court in which the
case was pending here.
And so the question arises as to whether by going — by
not raising the matter in the trial court here and by going
into the federal court and asserting it, the Appellants here
have precluded themselves from any relief before this court.
Now, we also are much concerned about the effect of that
— of Judge Sanders’ order. It seems extraordinary to us
that if the — that the federal court could send a case to the
state court and prescribe the manner in which the case
would be tried before the state court. We really don’t think
the federal courts have power to do that, and if they say that
they have power to do that, as Judge Sanders has said, and
that may ultimately prevail as the law in the federal courts
— if that’s the position of the federal courts, we are inclined
to the view that the state courts ought not to accept any
case remanded under those circumstances and should imme-
diately dismiss a case which is remanded under circum-
stances that directs the trial court — our court — to
proceed under laws that are contrary to our own laws and
procedure.
Of course, if we — it would be extraordinary for us to hold
that here and reverse the trial court’s judgment and dismiss
that when — dismiss the lawsuit on that ground, when that
was never brought to the trial court’s attention.
So we think that perhaps a more appropriate response to
that would be to consider whether or not the Appellants’
position in asserting that matter in the federal court, with-
out having asserted it in the trial court, preceded — pre-
cludes the Appellants from any relief by way of an appeal in
this court.
A-9
So I — that seems to be the issue that we have before us
here, and on that issue we'll hear the arguments of counsel.
Mr. Ayres?
ARGUMENT
MR. BICKEL: Gentlemen, as a given, we take the posi-
tion that we could raise the question in issue of jurisdiction
of the subject matter in the trial court at any time. That we
can —
CHIEF JUSTICE GUITTARD: But we don’t have any
record before us that — that would support your argument,
though. How do we do that?
MR. BICKEL: Judge, I'll talk about that issue.
CHIEF JUSTICE GUITTARD: Okay.
JUSTICE WILLIAMS: You take the position that this
order directing the trial court to try before a certain kind of
a judge is jurisdictional?
MR. BICKEL: Judge Williams, I'll take that up first.
CHIEF JUSTICE GUITTARD: Well now, the 162nd
Court had jurisdiction of the case, of the subject matter.
MR. BICKEL: We don’t think so. We don’t think it did.
CHIEF JUSTICE GUITTARD: Well, apart from the
question of whether it was properly in the 193rd or in the
162nd. I mean, apart from that question.
MR. BICKEL: Your Honor, apart from that and we don’t
think it did.
A-10
CHIEF JUSTICE GUITTARD: Now, the hundred —
There wouldn’t have been any problem about it.
MR. BICKEL: The requirements of the Cleveland-Ward
had been met.
CHIEF JUSTICE GUITTARD: Well, I don’t see any
problem with Cleveland versus Ward as you do, but I mean
assuming that, well, there’s nothing wrong with the district
— with a visiting judge under this stipulation trying the case
in the 162nd since I don’t think the —
MR. BICKEL: I’m a bit off guard, Judge Guittard,
because I haven’t reviewed the stipulation, but I think what
you say is generally correct.
CHIEF JUSTICE GUITTARD: All right. Then you're in
the position of saying that although the Court had jurisdic-
tion, the trial judge was disqualified rather than the ques-
tion of jurisdiction.
MR. BICKEL: No. The trial judge and court didn’t have
jurisdiction. See, now, this is the point I’ve been hanging on.
I believe that the only jurisdiction anyone had of this case
— that is, power, inherent power, judicial power — was pos-
sessed by the bankruptcy court. I believe that.
CHIEF JUSTICE GUITTARD: Well, then if we didn’t —
MR. BICKEL: May I — Go ahead.
CHIEF JUSTICE GUITTARD: Then if we didn’t have —
have the power, then we're back under that insurance case
and we ought not to have done anything, right?
MR. BICKEL: Wait a minute. I believe that the parties
and the Court, the federal court, bankruptcy court, that had
jurisdiction let this matter out on a leash.
A-11
JUSTICE KEITH: They had a string and could pull it
back whenever vou wanted to?
MR. BICKEL: Yes. If the Court order of remand of the
federal judge —
CHIEF JUSTICE GUITTARD: Well, don’t —
MR. BICKEL: — who had jurisdiction was not complied
with to the letter, then he could pull it back any time he
wanted to.
CHIEF JUSTICE GUITTARD: Well, under those cir-
cumstances don't you think we —
MR. BICKEL: Not pull it back, Your Honor. I think it
goes back. It’s automatic.
CHIEF JUSTICE GUITTARD: Don't you think under
those circumstances our courts just ought not to ever
assume any jurisdiction over a case that’s on that kind of a
leash?
MR. BICKEL: Well, that’s philosophical. I mean, the
parties wanted it to.
CHIEF JUSTICE GUITTARD: Well, it’s not as philo-
sophical because, if they didn’t have power to do it, wasn’t it
your duty to call that to the trial court’s attention.
MR. BICKEL: —
CHIEF JUSTICE GUITTARD: And failing that, how can
you have a — how are you in a position to ask any further
relief from the state of courts?
MR. BICKEL: May it please the Court. The first thing
that the Browning Interests — You must bear in mind that
the Fairway case was initiated in the one six two, 162nd, the
receivership case, which the Brownings were made parties
defendant, and a receivership was granted and that was
appealed from and the Brownings filed pleadings in the
Fairfield case — Fairway case I think it is — and in those
pleadings they led off with a declaratory judgment action
A-12
asking Judge Walker to — Mr. Avres is just frankly wrong
about when this came to the attention of the trial court —
asking Judge Walker to declare that as a matter of right, the
stipulation which was affixed to the pleadings was no longer
binding. And that’s in your records.
JUSTICE WILLIAMS: Well, wasn’t that the time that
the bankruptcy judge ought to have pulled his string? Right
then?
MR. BICKEL: Well, it would have been a good time,
Judge, but —
JUSTICE WILLIAMS: Why didn’t he?
MR. BICKEL: The reason —
JUSTICE WILLIAMS: Didn’t you go back and tell him to
pull the string?
MR. BICKEL: Well, I didn’t — we went back and told
him that we thought this was merely a contrived way to try
the Browning case on the merits before the one six two, and
he said, “No. What you’re talking about there is the Fairway
case, not the Browning case, and I’m going to issue” —
There were other agreements which were with respect to —
What I'm trying to say is the Fairway case has been
removed. And the federal judge said, “No, I'll tell you what.
As far as I’m concerned, the Fairway case goes back to state
court and I abstain from it.” But that didn’t affect the
Browning case.
CHIEF JUSTICE GUITTARD: Well, why was it not your
duty in the Browning case to call it to Judge Walker's atten-
tion that this stipulation precluded him from proceeding in
the case?
MR. BICKEL: I figured I would go do it when they tried
the declaratory judgment action, which I was told we were
trying.
JUSTICE KEITH: You found out sooner or later in the
trial in Judge Walker's court that you were trying the
Browning case I think.
A-13
MR. BICKEL: Instantly, Your Honor.
CHIEF JUSTICE GUITTARD: And then
JUSTICE KEITH: Well, did vou object then?
MR. BICKEL: Yes.
CHIEF JUSTICE GUITTARD: On what grounds?
JUSTICE KEITH: Well, you —
MR. BICKEL: On the ground that the sole jurisdiction
was with Judge Harless, the 193rd Court, because that fol-
lowed the stipulation.
CHIEF JUSTICE GUITTARD: All right. Then —
JUSTICE KEITH: Cleveland versus Ward. Is that your
Cleveland —
MR. BICKEL: Sir?
JUSTICE KEITH: That's your Cleveland against Ward
theory?
MR. BICKEL: Well, no. It’s more than that.
JUSTICE KEITH: That’s not —
MR. BICKEL: You understand the stipulation — Your
Honor, as Your Honor will recall, it had been correctly
assigned under the bankruptcy stipulation to Judge Harless,
193rd —
JUSTICE KEITH: Will your write —
MR. BICKEL: — a visiting, retired judge.
JUSTICE KEITH: Will you write a letter to the Court,
just a one-page letter, as to where we can find that in the
record? That you made an objection there because it vio-
lated the terms of that limited —
MR. BICKEL: I mean I've said — then I was waiting for
that -
CHIEF JUSTICE GUITTARD: When did you send it?
A-14
MR. BICKEL: —- to be tried in the so-called declaratory
judgment action.
CHIEF JUSTICE GUITTARD: Well, when did you ever
in the trial court, in anv trial court, call attention to the
stipulation as to its limitation with respect to Judge
Walker?
MR. BICKEL: Your Honor, [ think it was done for sev-
eral days in May and June.
CHIEF JUSTICE GUITTARD: Well, you then —
MR. BICKEL: — as I recall
CHIEF JUSTICE GUITTARD: Well then, you then cite
it —
MR. BICKEL: — in the so-called Fairway case.
JUSTICE KEITH: We're not going to talk about the
Fairway case. We don't have it up here or any part of it.
MR. BICKEL: Well, they're putting me with it, Your
Honor.
CHIEF JUSTICE GUITTARD: Well, will you — The
only place in your brief that you cite as a matter of record
that stipulation, is in — is a citation to the exhibit attached
to Mr. Ayres’ pleading, that I've been able to find. That's
the place that you refer to it.
MR. BICKEL: Well, there's Exhibit 89, Defendant's
Exhibit 89 that’s there.
CHIEF JUSTICE GUITTARD: Well, you haven't
referred us to it.
MR. BICKEL: Well, it’s in —
CHIEF JUSTICE GUITTARD: Well —
MR. BICKEL: — the papers we had filed I know, Your
Honor.
CHIEF JUSTICE GUITTARD: Well, if you have —
MR. BICKEL: The papers we filed November 30 —
A-15
CHIEF JUSTICE GUITTARD: if you have at — If you
did at any time before Judge Walker, call that to his atten-
tion, that stipulation with respect to his disqualification
because of the stipulation concerning a visiting or retired
judge, if you did that at any time, would you find that in the
record and would you advise us?
MR. BICKEL: Yes.
CHIEF JUSTICE GUITTARD: And it’s your recollection
now that you did that?
MR. BICKEL: Yes.
CHIEF JUSTICE GUITTARD: Well —
MR. BICKEL: It’s further my position, you understand,
Your Honor —
CHIEF JUSTICE GUITTARD: Well, why — if you did —
MR. BICKEL: I thought —-
CHIEF JUSTICE GUITTARD: Then why don’t you —
why didn’t you in your brief refer us to that part of the
record?
MR. BICKEL: Well, the only part of the record I can
refer you to is to bear their, the Brownings, initation of the
declaratory judgment action, bringing that very stipulation
into issue, that was tried.
CHIEF JUSTICE GUITTARD: So they’re the only —
MR. BICKEL: I don’t know how —
CHIEF JUSTICE GUITTARD: They’re the only ones
that brought — that presented it there. You didn’t present
it at all?
MR. BICKEL: Well, as far as I was concerned I could try
that issue.
CHIEF JUSTICE GUITTARD: And then —
MR. BICKEL: And when — Or, I mean, it was before the
Court.
A-16
CHIEF JUSTICE GUITTARD: All right. Then we'd like
for you to cite to us whenever you ever raised that in the
trial court.
MR. BICKEL: Well, they raised it, and I was going to get
to try it. It was on the table before the Court whether or not
that stipulation would be obfuscated or not.
CHIEF JUSTICE GUITTARD: As I — as I look at the
record, the only manner in which — the only occasion in
which the stipulation was before the Court was in their
argument as to whether they were entitled to a receivership.
And there was — and —
MR. BICKEL: Fine. I mean, there it is. That’s the
threshold point.
CHIEF JUSTICE GUITTARD: All right. And my ques-
tion is: Did you at any time point out to the judge that he
had no authority to proceed because of the limitation to the
stipulation limiting his authority to try it to a visiting or
retired judge?
MR. BICKEL: | don’t think I did just like that in the
absence of the defense of the declaratory judgment —
CHIEF JUSTICE GUITTARD: Well, how did you do it?
MR. BICKEL; — and those contentions. Through
defense of a declaratory judgment and those contentions.
Also I think I filed a plea in abatement.
CHIEF JUSTICE GUITTARD: Well —
MR. BICKEL: I'm telling you.
CHIEF JUSTICE GUITTARD: You'll cite that for us?
MR. BICKEL: I do think — Yes, Your Honor.
CHIEF JUSTICE GUITTARD: Okay.
MR. BICKEL: And further, it is my position that the
bankruptcy law, once an automatic stay is in effect — And
I say the stay was in effect — does not require that it be
brought to the attention of the trial judge. I say that. I con-
tend that.
A-17
JUSTICE WILLIAMS: When you found out that Dee
Brown Walker was trying this case, did you go back to the
bankruptcy court and say, “Pull that string”?
MR. BICKEL: Yes.
JUSTICE WILLIAMS: You did?
MR. BICKEL: Yes. ,
JUSTICE WILLIAMS: What did he say?
MR. BICKEL: I didn’t, but another lawyer with me went
back.
JUSTICE WILLIAMS: Well, what did he say?
MR. BICKEL: They said, “It’s just the Fairway case.
Leave it there. Go ahead.”
JUSTICE WILLIAMS: But it wasn’t the Fairway case.
MR. BICKEL: That’s what we tried to tell him, Judge,
but they wouldn’t do it.
I mean, they — Judge Gandy, the bankruptcy judge,
wouldn't.
JUSTICE WILLIAMS: Is that in this record?
MR. BICKEL: It’s the Fairway — I don’t remember.
JUSTICE WILLIAMS: I mean the matter about the
bankruptcy judge telling you to go ahead. Is that in this
record?
MR. BICKEL: Yes. It’s calied the abstention order.
JUSTICE WILLIAMS: That’s —
MR. BICKEL: I'm positive it is because I have read so
much about it in these papers that are before you gentlemen
at this time. Mr. Ayres argued the abstention order.
JUSTICE KEITH: You can readily see what we’re trying
to get at there.
MR. BICKEL: IJ certainly do, Your Honor.
JUSTICE KEITH: Didn’t you waive your complaint that
you —
A-18
MR. BICKEL: I don’t see how I could.
JUSTICE KEITH: — had been making in Judge
Sanders —
MR. BICKEL: That was the very point of —
JUSTICE KEITH: If you didn’t complain in Judge
Walker’s court, you’ve got no business complaining here or
in Judge Sanders’ court.
MR. BICKEL: I’m in accord, but I did — Well, I say the
law does not require me to complain because —
CHIEF JUSTICE GUITTARD: Well then if —
MR. BICKEL: — me being — It’s out of the jurisdiction
— or the jurisdiction being in the bankruptcy court, the pro-
ceedings outside the jurisdiction or the powers granted by
that court are a nullity.
CHIEF JUSTICE GUITTARD: The law may not require
you to complain, but the law very well may preclude you
from any relief in the state courts unless you did.
MR. BICKEL: I’m not talking about that.
CHIEF JUSTICE GUITTARD: I say you may — that as
far as the federal law —
MR. BICKEL: — whereby the judgment would be ren-
dered if the court had no jurisdiction.
CHIEF JUSTICE GUITTARD: If so far — if the — If the
federal law is that you didn’t have te complain in the trial
court, in the state court, in order to obtain relief from the
judgment in the federal court, if that’s the law as Judge
Sanders apparently —
MR. BICKEL: Believed it to be.
CHIEF JUSTICE GUITTARD: — believed it to be —
And we assume for the purpose of the present hearing that
that is the law in the federal court — still it’s a question of
state law as to whether you're entitled to any — to invoke
any relief in the state court by appeal or otherwise if you
A-19
didn’t make that complaint before our state court. Isn’t that
a matter of state law?
MR. BICKEL: Yes, it’s a matter of state law, but these
gentlemen and Judge Walker led me to believe that that’s
the first thing we were going to decide, to-wit, a declaratory
judgment action of whether or not they would be entitled to
try this case in state court before Judge Walker despite the
stipulation.
CHIEF JUSTICE GUITTARD: Now, where is that in the
record?
MR. BICKEL: In their declaratory judgment action which
ought to be in the transcript which is early on in the case,
Your Honor.
CHIEF JUSTICE GUITTARD: Mr. Bickel, I have read
that document — which I think is the document you're talk-
ing about — this morning, and I didn’t find anything there
except a discussion of whether the federal court’s order pre-
cluded a receivership in the state court. I didn’t find any
reference to whether or not the judge — the Visiting judge or
retired judge had to try the case.
MR. BICKEL: Their pleading, Your Honor?
CHIEF JUSTICE GUITTARD: Yes.
MR. BICKEL: Then, you know, I didn’t know it was com-
ing up. It’s been so long. I may be wrong about it, but my
recollection was to the contrary.
CHIEF JUSTICE GUITTARD: Well, if — That’s one of
the things that I think perhaps you'd better look into the
record on and advise us about.
MR. BICKEL: Okay.
CHIEF JUSTICE GUITTARD: Go ahead.
MR. BICKEL: If I can recall where I was, Your Honor.
CHIEF JUSTICE GUITTARD: Uh-huh.
A-20
MR. BICKEL: The — Well, I don’t recall where I was.
Yes. It’s been mentioned that we’re going to one court and
asking one thing and one court for another and this, that
and the other. The record ought to be clear that the judg-
ment in federal court rendered by Judge Sanders, which is
now on appeal in the Fifth Circuit came about through an
action instituted by the Brownings, Mr. Ayres, and not
through an action instituted by the Holloway/Humble
Trustee.
In reply to the action instituted by Mr. Ayres on behalf of
the Brownings the Trustee filed counterpleadings —
JUSTICE KEITH: Well, the Brownings were — Let me
interrupt for a moment. The Brownings were simply seeking
in it to require you to file a supersedeas bond or to surren-
der some assets on this judgment that was then final.
MR. BICKEL: That’s as I understznd it, Judge.
JUSTICE KEITH: Yes, and that’s what they wanted.
MR. BICKEL: I did not file —
JUSTICE KEITH: I know.
MR. BICKEL: — I didn’t handle the federal court matter
and I don’t know, but as I understand it, that’s correct.
JUSTICE KEITH: That’s the way as I remember the
record.
MR. BICKEL: I think that’s right.
JUSTICE KEITH: And it’s your assertion that they city-
slicked you some way or another. I’ve read enough of your
pers in this case that I don’t believe that you need a
guardian in the courtroom. .
I don’t — the record shows pretty clearly there that —
what I saw in there that you —
A-21
CHIEF JUSTICE GUITTARD: I —
JUSTICE KEITH: You didn’t do much objecting down
there in Judge Walker’s court.
CHIEF JUSTICE GUITTARD: Parenthetically, we don’t
believe that Mr. Ayres is a simpleton either, but go ahead.
MR. BICKEL: Well, I can’t remember whether I was in
federal court or Judge Walker’s court, but at any rate — in
federal court then Holloway’s counsel, Humble’s counsel,
countered with reference to this jurisdictional business and
the upshot of it is the Sanders opinion at this time.
JUSTICE WILLIAMS: Well, you sought this relief
Sanders gives, didn’t you?
MR. BICKEL: Oh, yes.
JUSTICE WILLIAMS: Well now, did you ever hear of
election of remedies? Isn't there something called election of
remedies?
MR. BICKEL: But —
JUSTICE WILLIAMS: Do you seek for us —
MR. BICKEL: I think we've argued that last hearing,
Judge Williams, and I don’t believe so.
CHIEF JUSTICE GUITTARD: We argued that in the
context of your federal civil rights.
JUSTICE WILLIAMS: That was before Judge Sanders’
opinion.
CHIEF JUSTICE GUITTARD: And we held there wasn’t
any conflict between the federal civil rights suit and this
case, but now this is something a little different.
MR. BICKEL: Well, you —
CHIEF JUSTICE GUITTARD: Don’t you see a differ-
ence?
MR. BICKEL: I don’t see a difference. I think I can con-
tend in any forum that Judge Walker didn’t have any juris-
A-22
diction and that his judgment is void and I see no inconsis-
tencies.
CHIEF JUSTICE GUITTARD: How can a stipulation
affect the jurisdiction of a court?
MR. BICKEL: Because the power, basic power of a body
of politic given to anyone — in this case it starts out with
the power of the bankruptcy court and it never leaves there
expect under certain terms and conditions. If they're vio-
lated, then it jumps right back to the bankruptcy court.
CHIEF JUSTICE GUITTARD: And there’s no federal
court decision before Judge Sanders’ was ever held, is there?
MR. BICKEL: I didn’t hear you.
CHIEF JUSTICE GUITTARD: I said before Judge
Sanders wrote, there wasn’t any federal decision that ever
held that.
MR. BICKEL: Well, I think — I think it’s just implicit in
arguing — I couldn’t conceive to the contrary. If the federal
court had jurisdiction, then that court’s jurisdiction —
CHIEF JUSTICE GUITTARD: It could well be the rule
that once the federa! court has remanded they cannot attach
any conditions to their remand. That could well be the law
as far as the federal courts are concerned until Judge
Sanders wrote. Isn’t that right?
MR. BICKEL: It could be.
CHIEF JUSTICE GUITTARD: Okay. Then I have some
difficulty seeing why it is so implicit.
MR. BICKEL: Well, it was improperly remanded. It never
left the federal court.
If the courts of the State of Texas, because of the terms
and conditions placed upon that federal court’s remand,
were precluded for public policy or whatever reasons, in
accepting and handling the case because it interferes with
their handling of their judicial business, then the case was
never remanded.
A-23
CHIEF JUSTICE GUITTARD: All right. Then the case
that Judge — That’s what in effect Judge Sanders held, that
it was the same as if the case had never remanded because
it was not tried under the conditions —
MR. BICKEL: That’s right.
CHIEF JUSTICE GUITTARD: — of the remand.
MR. BICKEL: That’s right.
CHIEF JUSTICE GUITTARD: But then that doesn’t
affect our question as to whether or not you are entitled to
any further relief in the state court if you didn’t raise that
timely in the state court.
MR. BICKEL: Well, I said overriding everything done,
it’s the jurisdiction of the federal court, and unless its rules
are complied with then anything occurring in state courts is
a nullity.
CHIEF JUSTICE GUITTARD: Well, we bow to that. We
bow to that.
MR. BICKEL: And so I[ can’t —
CHIEF JUSTICE GUITTARD: We'll bow to that, but the
question is whether you are entitled to proceed with this
appeal or whether we should dismiss it.
MR. BICKEL: Certainly.
CHIEF JUSTICE GUITTARD: And that’s not a question
the federal court —
MR. BICKEL: Well, certainly if you conclude that —
Well, I’m challenging jurisdiction now in the state courts.
CHIEF JUSTICE GUITTARD: Well, then why shouldn’t
we dimiss the appeal?
MR. BICKEL: If you believe — You can only dismiss it
on the grounds that there’s no jurisdiction. If you find there
is jurisdiction, then I’m entitled to bring my points of error
that occurred in the trial court, Your Honor.
A-24
JUSTICE KEITH: In both places, federal court and state
court at the same time?
"MR. BICKEL: Yes.
JUSTICE KEITH: Isn’t there an election of remedies
doctrine?
MR. BICKEL: I don’t believe so. I think you can take —
In fact, to contend differently in a different court would be
madness, on a point of jurisdiction and who’s got the power.
We, of course, contend consistently in both courts.
CHIEF JUSTICE GUITTARD: You're asking us in this
case to reverse the judgment of the trial court, right?
MR. BICKEL: Yes.
CHIEF JUSTICE GUITTARD: You’re not asking us to
dismiss our appeal?
MR. BICKEL: Yes.
CHIEF JUSTICE GUITTARD: You are?
MR. BICKEL: Both.
CHIEF JUSTICE GUITTARD: The case — the appeal is
dismissed. That leaves then the order of the trial court in
force. If you’re asking us to dismiss —
MR. BICKEL: No. I, I, | —
CHIEF JUSTICE GUITTARD: If you’re asking us to dis-
miss the appeal, we'll do it right today.
MR. BICKEL: Your Honor, I ask you to dismiss only on
a finding that there’s no jurisdiction in the 162nd and
thereby in accordance with the Appellate review language
send it to the trial court with instructions to dismiss for
want of jurisdiction.
CHIEF JUSTICE GUITTARD: That's not dismissal of
appeal. That’s a reversal.
MR. BICKEL: Well, I didn’t — I didn’t — I had not
intended to convey the idea that I wanted a dismissal to
anybody.
A-25
CHIEF JUSTICE GUITTARD: All right. If you don’t
want to dismiss this appeal — I didn’t think you wanted a
dismissal of the appeal. I just wanted to make you sure you
understood what you were asking for if you did — if you said
that you wanted one.
MR. BICKEL: I’m trying not to say I want a dismissal.
CHIEF JUSTICE GUITTARD: Okay. Now, is there any-
thing further, Mr. Bickel?
MR. BICKEL: I would merely want to point out that in
my view i think that the Sanders ruling of no jurisdiction of
Walker precludes this Court taking any action at this time.
Because if that decision is upheld, that decision of Judge
Sanders — the voidness of the Walker order — is upheld,
that in my view is dispositive of the 162nd District Court
judgment and this appeal.
So I will ask the Court to stay and do nothing. If this
Court believes that the 162nd District Court did not have
jurisdiction of the matters for — I will call it the state court
reason as distinguished from federal jurisdictional reason —
then this Court could remand this case to the 162nd direct-
ing that it dismiss the — its judgment.
However, this Court cannot, in my view, make any other
decision, because to do so not knowing whether or not the
federal court’s decision will be reversed or upheld, bringing
about — and I probably hear it constantly, and the parties
may — they ultimately may be entitled to it as far as the
Court is concerned.
We're entitled to appeal if the 162nd District Court in fact
is to have jurisdiction of the matter. And we're entitled to
dismissal of the 162nd Court, trial court judgment for want
of jurisdiction —
CHIEF JUSTICE GUITTARD: You can't dismiss a judg-
ment.
MR. BICKEL: Now wait a minute.
CHIEF JUSTICE GUITTARD: You can’t dismiss a judg-
ment. You either reverse a judgment or affirm a judgment.
You dismiss a cause.
A-26
ii eiccta ne eclimnialiiallaaae
MR. BICKEL: Well, dismiss a cause.
CHIEF JUSTICE GUITTARD: Okay.
MR. BICKEL: So in the event that the Fifth Circuit
upholds the Sanders’ decision, United States Supreme
Court either upholds it or grants certiorari.
JUSTICE WILLIAMS: Did the Fifth Circuit set this for
hearing?
MR. BICKEL: Not that I know of, Your Honor. In fact, I
don’t think that the Humble/Holloway briefs are due until
Monday or Tuesday or Wednesday or something like that.
CHIEF JUSTICE GUITTARD: Anything further?
MR. BICKEL: No, sir.
A-27
APPENDIX 3
NO. 05-82-01378-CV
IN THE COURT OF APPEALS
FOR THE FIFTH SUPREME JUDICIAL DISTRICT
OF TEXAS
AT DALLAS
HUMBLE EXPLORATION COMPANY. INC. et al.,
Appellants
US.
JANE H. BROWNING, et al.,
Appellees
Appealed From The District Courts of
Dallas County, Texas
193rd Judicial District Court
(with Honorable Fred Harless, presiding)
VOLUME ONE
Judgment After Trial
May 3-May 12, 1982
162nd Judicial District Court
(with Honorable Dee Brown Walker. presiding)
VOLUMES TWO
AND THREE
Judgment After Trial
July 6-August 20, 1982
BRIEF FOR APPELLANTS
VOLUME TWO
BICKEL & CASE
Attorney at Law
4300 Thanksgiving Tower
Dallas, Texas 75201
(214) 651-8545
A-28
POINT OF ERROR NO. 15 (RESTATED)
THE JUDGMENT SIGNED AUGUST 26, 1982 AND
ALL PRIOR PROCEEDINGS THEREUNDER ARE VOID
AND SHOULD BE SET ASIDE BECAUSE THE 162ND
JUDICIAL DISTRICT COURT LACKED SUBJECT
MATTER JURISDICTION. (Tr. 1421).
POINT OF ERROR NO. 16 (RESTATED)
THE TRIAL COURT LACKED JURISDICTION TO
ALLOW THE BROWNINGS TO SEEK ANY RELIEF IN
THE 162ND JUDICIAL DISTRICT COURT BECAUSE
TO DO SO VIOLATED THE EXPRESS TERMS OF THE
“STIPULATION AND AGREEMENT ON MANNER IN
WHICH CONTROVERSY SHALL BE HEARD, DETER-
MINED AND LIQUIDATED.” (Tr. 864 at 878).
POINT OF ERROR NO. 17 (RESTATED)
THE TRIAL COURT LACKED JURISDICTION TO
GRANT THE BROWNINGS AN IMMEDIATE
DECLARATORY JUDGMENT BECAUSE APPEL-
LANTS WERE ENTITLED TO A JURY TRIAL AFTER
DEMANDING SAME. (Rec.S.F. 1065) (Tr. 1045).
POINT OF ERROR NO. 18 (RESTATED)
THE TRIAL COURT ERRED IN GRANTING THE
BROWNINGS’ APPLICATION FOR IMMEDIATE
DECLARATORY JUDGMENT BECAUSE THE TEXAS
DECLARATORY JUDGMENT ACT CANNOT BE USED
TO CONSTRUE A COURT ORDER.
POINT OF ERROR NO. 19 (RESTATED)
THE TRIAL COURT ERRED IN ALLOWING EXPE-
DITED AND SUBSTITUTED SERVICE OF PROCESS
ON “CROSS-DEFENDANTS AND THIRD-PARTY
DEFENDANTS” BECAUSE IT VIOLATED
TEX.R.CIV.P. 106 AND 695.
A-29
ARGUMENT AND AUTHORITIES UNDER
POINTS OF ERROR NO. 15 THROUGH 19
A threshold issue of the appeal of the August 26 judgment
is whether the 162nd Judicial District Court had subject
matter jurisdiction of the Brownings’ cause of action. The
determination of the fundamenta! validity of the trial
court’s proceedings lies in the Stipulation and Agreement of
January 17, 1980, approved by the Bankruptcy Court. (Tr.
878). The Stipulation clearly states the Brownings agreed to
litigate their claims against Appellants before a specific
retired or visiting judge agreed upon by both sides in the
193rd Judicial District Court and further that the Brown-
ings would not seek a receivership or injunction.
In disregard of the Stipulation, the Brownings filed a
declaratory judgment action in the 162nd Judicial District
Court to construe and avoid the Stipulation. Such action
necessarily involves construction of the Bankruptcy Court’s
Order of Abstention of June 4 which provides, in part:
“...that this Court abstains in favor of the courts of the
State of Texas with regard to the litigation now pending as
Cause No. 82-5742-I in the 162nd District Court...” (Tr.
864, emphasis added). Appellants objected to the trial
court's assuming jurisdiction to construe this Bankruptcy
Court Order, because among other reasons such order
related to the Fairway claims then pending in the 162nd
Judicial District Court, at a time when the Brownings’ cause
was not before the 162nd Judicial District Court. (Rec.S.F.
822). To the contrary, their identical cause of action was
pending in the 193rd Judicial District Court as stated in
their pleadings. (Tr. 864). Counsel for the Brownings stated:
“I represent to the Court that that Order expressly vests
this Court with jurisdiction...” (Rec.S.F. 822).
Thus, the Brownings improperly utilized the Declaratory
Judgment Act for purposes of asking the trial court to inter-
pret an Order of the Bankruptcy Court, constituting
reversible error. Speaker v. Lawler, 463 S.W.2d 741
(Tex.Civ.App. - Beaumont 1971, writ ref’d, n.r.e.).
A-30
ee
In Speaker, the court held:
“We have concluded that a litigant cannot use Article
2524-1 for the purpose of asking a trial court to inter-
pret a prior judgment entered by that or another court.
We feel the approval of such a procedure would literally
open “Pandora’s Box” and permit, among other things,
a new type of re-trial of the same issues or a new
method of review of the prior judgment.”
When the trial court does not have jurisdiction to act, the
proper practice for the appellate court is not to dismiss the
appeal but to reverse the trial court’s order, and remand the
cause with the direction that it be dismissed. Martin v. Com-
mercial Standard Fire & Marine Ins. Co., 505 S.W.2d 799
(Tex. 1971); Fruit Dispatch Co. v. Rainey, 111 Tex. 266, 232
S.W. 281, 282 (1921): TEX.R.CIV.P. 434.
“The declaratory judgment action cannot be invoked for
the determination of procedural rules or rights... in a
pending suit. The reason . . . is that such questions should
be determined by the Court in which such action is pending
or is to be filed.” Railroad Commission v. Houston Natural
Gas Corp., 186 S.W.2d 117, 124 (Tex.Civ.App. — Austin
1945, writ ref'd w.o.m.).
The Order resulting from the declaratory judgment suit
recites forty-seven findings of fact and conclusions of law as
to the merits of the Brownings’ action as well as the merits
of the underlying constructive trust case. (Tr. 1045). There
is a fundamental question of jurisdiction of the 162nd Judi-
cial District Court to entertain the declaratory judgment
claims of the Brownings, thus testing the validity of the
entire proceedings. In response to the initiation of these
claims, Appellants immediately filed Pleas in Abatement
raising the subject matter jurisdiction of the trial court. (Tr.
763, 900, 984, 1109) (argued under Point of Error No. 10).
Appellants’ pleadings alleged and established that the
Brownings’ identical cause of action was pending in the
A-31
193rd Judicial District Court with Judge Harless presiding,
and set for jury trial in September, 1982. (Set.S.F. 1771).
The pleas were summarily overruled (Tr. 336, 338) in direct
contravention of Texas law, rendering the trial court’s sub-
sequent orders void. Curtis v. Gibbs, 511 S.W.2d 263 (Tex.
1974); Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063 (1926);
Conn v. Campbell, 245 S.W.2d 813 (Tex. Comm’n App.
1930, opin. adopted).
In Continental Oil Co. v. P.P.G. Industries, 504 S.W.2d 616
(Tex.Civ.App. - Houston [1st Dist.] 1973, writ ref’d, n.r.e.),
the court was presented with a plea in abatement in
response to a declaratory judgment action. The Houston
court quoted the applicable rule found in Texas Liquor Con-
trol Board v. Canyon Creek Land Corp., 456 S.W.2d 891 (Tex.
1970):
‘
‘...As a general rule, an action for declaratory judg-
ment will not be entertained if there is pending at the
same time it is filed, another action or proceeding
between the same parties and in which may be adjudi-
cated the issues involved in the declaratory action...”
Therefore, the right of the Brownings to seek relief in the
162nd Judicial District Court constituted the adjudication of
the merits of a declaratory action by a court without
jurisdiction.
When the trial court improperly assumed jurisdiction,
Appellants immediately demanded a jury trial of the fact
issues and paid a jury fee. (S.F. 943, 1061-4). The trial court
refused their jury demand, which rendered any further pro-
ceedings invalid. TEX.CONST. art. I, §15; art. V, $10. Our
Supreme Court has held that the mere denial of the consti-
tutionally protected right to trial by jury raises an inference
of probable harm under both Rules 434 and 504 so as to
require reversal of the trial court’s judgment. Texas Pacific
Railway Company v. Van Zandt, 317 S.W.2d 528, 531 (Tex.
1958).
A-32
The law is clear that the right to a jury trial exists in
proceedings under the Declaratory Judgment Act. Continen-
tal Oil Company v. P.P.G. Industries, 504 S.W.2d 616
(Tex.Civ.App. - Houston [1st Dist.] 1973, writ ref’d, n.r.e.),
Hatten v. City of Houston, 373 S.W.2d 525 (Tex.Civ.App. -
Houston 1963, writ refd, n.r.e.). The Uniform Declaratory
Judgment Act, TEX.REV.CIV.STAT.ANN. Art, 2524-1, Sec-
tion 9 provides:
“When a proceeding under this Act involves the deter-
mination of an issue of fact, such issue may be tried and
determined in the same manner as issues of fact are
tried and determined in other civil actions in the Court
in which the proceeding is pending.”
Consequently, the trial court erred as a matter of law in
assuming jurisdiction to: construe the June 4 Order of the
Bankruptcy Court (Tr. 1399); to interpret the Brownings’
rights under the Stipulation and Agreement, approved by
Order of the Bankruptcy Court (Tr. 864 at 878); and further
committed reversible error in refusing —— jury
demand. (S.F. 943).
The trial court also erred in entering judgment on tlie
merits of the declaratory judgment action in a temporary
hearing. (Tr. 344). This procedure has been declared
improper by the Supreme Court of Texas. Houston Belt & T.
Ry. Co. v. Texas & New Orleans R. Co., 289 S.W.2d 217 (Tex.
1956). In Houston Belt, declaratory judgment claims were
presented and ruled upon in a hearing for temporary injunc-
tion. The construction of a prior contract between the liti-
gants was a threshold issue, as in the case at bar. Proper
objections were made that the court was without authority
to convert the hearing into a trial on the merits. The ques-
tion in the case sub judice is the court’s jurisdiction to act
before a trial on the merits of the constructive trust case
could be had.
A court “will not grant declaratory judgment if the same
issues between the same parties (are) involved in another
cause pending at the time of the filing of the declaratory
A-33
proceedings.” Pickens v. Hidalgo County Water Control &
Improvement District, 284 S.W.2d 784 (Tex.Civ.App. — San
Antonio 1955, no writ). Furthermore, when a plaintiff's
cause of action might be enforced by seeking direct relief,
declaratory judgment is improper. Southern Traffic Bureau
uv. Thompson, 232 S.W.2d 742, 750 (Tex.Civ.App — San
Antonio 1950, writ ref'd n.r.e.).
Our courts are not authorized to enter declaratory judg-
ments unless it ends the controversy. Joseph v. City of
Ranger, 188 S.W.2d 1013 (Tex.Civ.App. — Eastland 1945,
writ ref’'d w.o.m.). Of course, this did not occur in the case at
bar. The Brownings’ use of the declaratory judgment action
was to determine if they were properly in Judge Walker’s
court, and if they could proceed for extraordinary relief and
a trial. (Tr. 864).
Therefore, Judge Walker committed reversible error in
improperly ruling on the Brownings’ claims as to their right
to seek any relief in the 162nd Judicial District Court. The
Brownings’ claims were unliquidated and based upon theo-
ries of constructive trust which were set for trial in the
193rd court, the court of dominant and exclusive jurisdic-
tion.
Service of Process
The manner of service on all cross-defendants and third
party defendants constituted an abuse of TEX.R.CIV.P.
106(b) and TEX.R.CIV.P. 695. Rule 106(b) provides:
“The court may authorize service... in any other man-
ner that the affidavit or other evidence before the court
shows will be reasonably effective to give the defendant
notice of the suit.”
In order to utilize this provision of Rule 106, a strict com-
pliance thereof is required. The Brownings did not establish
that personal service upon any cross-defendants or third
party defendants was impracticable as required by law.
A-34
Stylemark Construction, Inc. v. Spies, 612 S.W.2d 654
(Tex.Civ.App. - Houston [ist Dist.] 1981, no writ).
The trial court further erred in allowing the Brownings to
serve various cross-defendants and third party defendants
by serving attorneys for Humble. Absent the defendant’s
explicit authorization for an attorney to accept service, the
trial court does not gain personal jurisdiction over the
defendant. H. L. McRae Co. v. Hooker Construction Co., 579
S.W.2d 62 (Tex.Civ.App. - Austin 1979, no writ). Humble’s
counsel objected to this manner of service and refused to
accept service of process (Rec.S.F. 842). The trial court has
no discretion to authorize later a mode of service not autho-
rized when made. Grasz v. Grasz, 608 S.W.2d 356
(Tex.Civ.App. - Dallas 1980, no writ). Having wholly failed
to comply with the mandatory requirements of substituted
service, the trial court acquired no personal jurisdiction over
the parties which would constitute the required statutory
three days’ notice to defendants, pursuant to TEX.R.CIV.P.
695.
In summary, the trial court erred in:
(1) assuming jurisdiction to construe an Order of the
United States Bankruptcy Court; (Tr. 1045, 864 at
878);
(2) entertaining and granting a declaratory judgment
action, without a jury trial or a non-jury trial of the
merits of such action; (Tr. 1045);
(3) converting a temporary hearing into a trial on the
merits of a declaratory judgment, to determine if
the court had jurisdiction.
Because the trial court lacked jurisdiction of the matter,
the August 26 Judgment should be reversed and remanded
with instructions to dismiss the Brownings’ suit.
POINT OF ERROR NO. 20 (RESTATED).
JUDGE WALKER ERRED AS A MATTER OF LAW IN
FAILING TO RECUSE HIMSELF.
A-35
POINT OF ERROR NO. 21 (RESTATED)
JUDGE WALKER ERRED IN RULING UPON APPEL-
LANTS’ MOTION TO RECUSE AND INCLUDING
WITHIN THE ORDER OF REFERRAL AN ADMONI-
TORY INSTRUCTION.
POINT OF ERROR NO. 22 (RESTATED)
THE TRIAL COURT, JUDGE MORRIS ROLSTON
PRESIDING, ERRED AS A MATTER OF LAW IN
OVERRULING APPELLANT’S MOTION TO RECUSE.
POINT OF ERROR NO. 23 (RESTATED)
THE FAILURE BY JUDGE WALKER TO RECUSE
HIMSELF OPERATED TO DEPRIVE APPELLANTS OF
PROCEDURAL DUE PROCESS, AS GUARANTEED BY
THE CONSTITUTIONS OF THE STATE OF TEXAS
AND OF THE UNITED STATES.
POINT OF ERROR NO. 24 (RESTATED)
THE FAILURE BY THE TRIAL COURT TO GRANT
THE MOTION TO RECUSE OPERATED TO DEPRIVE
APPELLANTS OF PROCEDURAL DUE PROCESS, AS
GUARANTEED BY THE CONSTITUTIONS OF THE
STATE OF TEXAS AND OF THE UNITED STATES.
ARGUMENT AND AUTHORITIES
UNDER POINTS OF ERROR 20 - 24
On June 25, 1982, Appellant filed, pursuant to Rule 18a of
the Texas Rules of Civil Procedure, a motion wherein
Appellants requested Judge Walker to recuse himself or to
refer the motion pursuant to said rule and
TEX.REV.CIV.STAT. Art. 200(a) (Tr. 1098). The motion
was founded on Appellants’ rights under the constitution
and laws of the United States and of the State of Texas to
have their case heard and adjudicated by a fair and impar-
tial judge in a manner consistent with the requirements of
A-36
Ln A elt Dale Rl PARASOL CF BOR A Ie Y 6 encase tc alle
procedural due process and the canons of the Code of
Judicial Conduct. Appellants specifically urged in their
motion that, in the instant case, the impartiality of Judge
Walker might reasonably be questioned on grounds includ-
ing his initiating and entertaining numerous ex parte confer-
ences with opposing counsel, his apparent pre-judgment of
material fact issues in the case on the basis of ex parte com-
munications, his entry of numerous orders in complete dero-
gation of Appellants’ rights to procedural due process, and
his past and present relationship with opposing counsel, cer-
tain of whom had a financial interest in the lawsuit.
Notwithstanding the explicit directives cci:iained in Rule
18(a), on January 28, 1983, rather than recuse himself or
refer the case for hearing, Judge Walker entered an order
reciting consideration of the motion and expressly ruling
that the motion was without merit (Tr. 1135). The order
further directed referral to the presiding judge with the
admonition that: “a portion of this cause is set for trial on
its merits for July 6, 1982.” (Tr. 1135 LL 17-18).
Judge Morris R.'>+on was subsequently assigned to hear
the motion, which was set for hearing on July 1, 1982.'
At the hearing, Appellants introduced evidence, which as
described hereinafter was largely undisputed, showing: (i)
that up to the time of hearing, Judge Walker had followed a
consistent pattern of entering orders without notice to
Appellants and without hearing; (ii) that certain of these
orders followed or grew out of admitted ex parte communi-
cations; (iii) that the trial court held on a daily basis ex parte
conferences with opposing counsel, and in particular, with
counsel for the Brownings; (iv) that the Court had con-
ducted an extra-judicial investigation of material facts in
‘It is not apparant from the Transcript or Statement of Facts who set
the matter for hearing. Judge Rolston operated throughout the hearing on
the misconception, likely gained from Judge Walker’s admonitory
instruction, that he necessarily had to rule prior to the July 6, 1982 set-
ting. (S.F. 124-125; 138 71 2-4).
A-37
dispute between the parties pending before it; and (v) that
Judge Walker had been represented in his individual and
judicial capacity on numerous occasions by counsel for the
Brownings and by counsel for certain of the other opposing
parties.
Appellants attempted to introduce evidence on the close
business and personal relationship between and among the
judge, counsel for the Brownings, the receiver, counsel for
the receiver, and certain of the counsel for Participants,
arising, in part, from their joint tenure on the County Law
Library Committee and, upon Judge Walker's resignation
therefrom, from their formation and operation of the Dallas
County Bar Association. This evidence was improperly
excluded by the trial court on the grounds that it was imma-
terial. (S.F. 207).?
Immediately upon completion of the testimony, the trial
court ruled from the bench and, as a matter of law, denied
the motion. (Recusal S.F. 166 J] 13-14; Tr. 1155). Although
proper request was made therefor (Tr. 1231), the trial court
declined to enter findings of fact or conclusions of law.
Appellants submit, that for the reasons set forth
hereinafter, Judge Walker erred as a matter of law in ruling
upon the motion and in failing to recuse himself instanter
and that the trial court assigned to hear the motion applied
the wrong standard in ruling upon it and erred in denying it.
Appellants further submit that said actions of the trial
court, acting through Judge Walker and through Judge
Morris Rolston, operated to deprive Appellants of their
rights to procedural due process, as guaranteed by the Con-
stitution of the United States and of the State of Texas.
—
°From July 1-2, 1982 hearing on Motion to Recuse. Hereafter refer-
ences to the Statement of Facts from the hearing will be designated
“Recusal S.F.
A-38
at
I.
JUDGE WALKER ERRED AS A MATTER OF
LAW IN CONSIDERING AND OVERRULING
APPELLANTS’ MOTION TO RECUSE.
Rule 18a(c) of the Texas Rules of Civil Procedure pro-
vides that after the filing of a motion to recuse and prior to
any further proceedings in the case: “the judge shall either
recuse himself or request the presiding judge of the adminis-
trative judicia! district to assign a judge to hear such
motion.”
Rule 18a(d) in turn provides, in relevant part, that: “if the
judge declines to recuse himself, he shall forward to the pre-
siding judge of the administrative judicial district, in either
original form or certified copy an order of referral, the
motion and all opposing and concurring statements. Except
for good cause stated in the order in which further action is
taken, the judge shal! make no further orders and shall take
no further action in the case after filing of the motion and
prior to a hearing on the motion.” (emphasis added). Thus,
under the express provision of the rule, the judge must
either recuse himself instanter or refer the case. In the case
at bar, Judge Walker did neither; rather, he entered an
order, citing consideration of the motion and expressly rul-
ing it to be “without merit.” Judge Walker further included
within his order an admonitory instruction that the case was
pending on July 6, 1982. Appellants submit that Rule 18a
permits the court but one of two actions; either to recuse
himself or to refer the case for hearing by the presiding
judge or his designee. The rule is clearly and precisely tai-
lored to avoid the very circumstance presented herein,
namely the prejudice that may result from a “preruling” on
the motion by the judge made subject thereto.
Il.
BOTH THE CONSTITUTION OF THE UNITED
STATES AND THAT OF THE STATE OF TEXAS
DICTATE THAT A COURT SHALL RECUSE HIM-
SELF IN ANY CASE WHEREIN HIS IMPARTIAL-
ITY MIGHT REASONABLY BE QUESTIONED.
Prior to the effective date of the Code of Judicial Conduct
on September 1, 1974, the grounds for disqualification of
A-39
judges in Texas were limited to the three grounds prescribed
in Sections 11 of Acticle 5 of the Texas Constitution, in
Article 15 of the Texas Civil Statutes, and in Article 30.01 of
the Texas Code of Criminal Procedure. The stated grounds
dictated disqualification in instances in which the judge had:
(1) an interest in the case, (2) a prohibited relationship to a
party; or (3) acted as counsel in the case. Under these provi-
sions, which were held to be both inclusive and exclusive,
Chilicote Land Company v. Houston Citizens Bank and Trust
Company, 525 S.W.2d 941 (Tex. Civ. App. - El Paso 1974, no
writ), neither bias nor the appearance of bias was a ground
for disqualification.
However, under the due process clause of the United
States Constitution, the United States Supreme Court had
developed, as a matter of procedural due process, a body of
law which dictated a stricter and higher standard than that
required by the various state constitutions, statutes and
decisions. The Supreme Court held that due process dictates
that: “justice must satisfy the appearance of justice,” Offutt
vu. United States, 348 U.S. 11, 14. In Tumey v. Ohio, 273 U.S.
510, 532, the United States Supreme Court prescribed that
“every procedure which would offer a possible temptation to
the average man as judge .. . not to hold the balance nice,
clean and true between the State and the accused, denies
the latter due process of law.” In Jn re Murchison, 349 U.S.
133 (1955), the Supreme Court stated that “such a stringent
rule may sometimes bar trial by judges who have no actual
bias and who would do their very best to weigh the scales of
justice between contending parties.”
In view of the Supreme Court’s pronouncements on the
requirements of due process, the Texas Supreme Court in
1974 promulgated the Code of Judicial Conduct, and in the
same vear Congress enacted 28 U.S.C. § 455(a). Both Canon
3c of the Texas Code of Judicial Conduct and 28 U.S.C.
§ 455(a) require, in identical language, the disqualification
of a judge in any “proceeding in which his impartiality might
reasonably be questioned . . .” (Emphasis added).
A-40
Canon 3C of the Code of Judicial Conduct provides, in
relevant part, as follows:
“C. Disqualification (Art. B, Sec. 11, Texas Constitution;
Art. 15 V.A.T.S.; C.C.P. art. 30.01).
“(1) A judge should disqualify himself in a proceeding
in which his impartiality might reasonably be ques-
tioned, including, but not limited to, instances where:
(a) he has a personal bias or prejudice concerning a
party, or personal knowledge of disputed evidentiary
facts concerning the proceeding; .. .
(c) he knows that he... has . . . (an) interest that
could be substantially affected by the outcome of the
proceeding.”
In McLeod v. Harris, 582 S.W.2d 772 (Tex. 1979), the
Texas Supreme Court pointed out that Article 5, Section 11
of the Texas Constitution, relating to disqualification, has
been “implemented” by Canon 3C of the Code of Judicial
Conduct. The Court further ruled that mandamus lies to
enforce compliance with Tex.Rev.Civ.Stat., Art. 200a(6),
which provides, in relevant part, that “a district judge shall
request the presiding judge to assign a judge of the adminis-
trative district to hear any motions to recuse such district
judge from a case pending in his court.” Thus, the Texas
Supreme Court clearly indicated the applicability of Canon
3C of the Code of Judicial Conduct as a measure by which to
judge the necessity for recusal.
In Shapley v. Texas Department of Human Resources, 581
S.W.2d. 250 (Tex.Civ.App. — El Paso 1979), the court
stated as follows:
“Prior to the effective date of the Code of Judicial Con-
duct on September 1, 1974, the grounds enumerated by
the Constitution were held to be both inclusive and
exclusive and mere bias and prejudice were not dis-
abling factors. (case cited). Now under the code, the sub-
ject of a disqualification has been broadened and the
direction has been made that a judge should disqualify
A-41
himself in a proceeding in which his impartiality might
reasonably be questioned.” (emphasis added).
Similarly, in Robb v. Robb, 605 S.W.2d 391 (Tex.Civ.App.
— El Paso 1980, no writ), the court, after discussing several
earlier decisions holding that the limited grounds for dis-
qualification specified in the Texas Constitution were both
“inclusive and exclusive” and that “mere prejudice and bias
are excluded as a disabling factor” recognized that: “All of
this has now been changed by the Supreme Court’s decision
in McLeod v. Harris.” While expressing some discomfiture
with the expansion of the grounds for recusal, the court in
Robb expressly held that it was bound by the decision of the
Supreme Court.
In Manges v. Garcia, 616 S.W.2d 380 (Tex.Civ.App. — San
Antonio 1981, no writ), the court rejected the “duty to sit”
concept of older cases which held that unless the judge was
disqualified under one of the three grounds specified in Sec-
tion 11 of Article 5 of the Constitution, he could not be dis-
qualified and had a duty to sit. The court stated:
“Canon 3C (1)(a) of the Code of Judiciai Conduct pro-
vides that a judge should disqualify himself in a pro-
ceeding in which his impartiality ‘might reasonably be
questioned’ if ‘he has a personal bias or prejudice con-
cerning a party, or persona! knowledge of disputed evi-
dentiary facts concerning the proceeding.’
“It is clear that Canon 3C (1)(a) contemplates that a
judge’s refusal to sit may be based on a reason not
included in the disqualifying grounds enumerated in the
Constitution, and it is this expansion of the Constitu-
tional statement of disqualifying factors which was con-
demned in Robb as an amendment of the Constitution
by a judicial fiat.”
The court goes on to point out as follows:
“One of the hallmarks of our system of justice is the
constant attempt to prevent even the probability of
unfairness. To attain this goal the courts have identi-
fied various circumstances which point to the conclu-
A-42
——
sion that the possibility of actual bias of the adjudicator
is too high to be constitutionally tolerable. The applica-
tion of this principle is not limited to cases in which the
decision maker has an ‘interest’ in the result. It is appli-
cable to cases where the judge has been the target of
personal abuse or criticism from the party before him.”
Withrow v. Larkin, 421 U.S. 35, 47, 95 S.Ct. 1456, 1464,
43 L. Ed. 2d 712 (1975). Although the majority of cases
in which the principle has been applied involve criminal
prosecutions, the fact that, as recognized in Larkin, the
rule applies to hearings before administrative agencies
supports the conclusion that it is applicable to civil
cases. There is no reason to conclude that our elemen-
tary notions of fairness are inapplicable to civil cases.”
616 S.W.2d at 382.
Thus, from the foregoing it is abundantly clear that pur-
suant to Canon 3C of the Code of Judicial Conduct, a judge
must disqualify himself in any case in which his impartiality
might reasonably be questioned. The effect of this develop-
ment is te substitute for the subjective standard of the ear-
lier law an objective standard and to broaden the grounds
for disqualification to include instances of situations which
might lead a reasonable man to question the impartiality of
the judge.
The evolution of the state law in this respect is mirrored
in the amendment of 28 U.S.C. § 455 ond in the cases con-
struing the amended statute. These cases, and the express
language of Canon 3C, aid in defining facts material to the
determination. Appellants would submit that each of the
following grounds, amply supported by evidence introduced
at the hearing, mandate Judge Walker's recusal.
A. ” Pergonal Knowledge of Disputed Evidentiary
Facts.
At the hearing before Judge Roiston, Appellants intro-
duced uncontradicted testimony that one of the fundamen-
tal facts in dispute in the hearing before Judge Walker was
the nature of the formation in which certain wells were
A-43
drilled and the effect of shutting in the wells on the wells
themselves and the formation (Recusal S.F. 235-236).
Appellants further introduced into evidence before Judge
Rolston the following pronouncement of Judge Walker:
“The Court: I'll give it to you. I wasn’t being facetious
when I put it like that. They say they have got a hun-
dred fifty million, that’s this bunch over here, and I
made an investigation about this Austin Chalk, too,
about somebody that knows about it. Said might never
get them back on. They are not any good to start with.
That’s what this person told me.
“Mr. Keahey: We may well want to put our side of that
story by proof, and if so, we will ask the court for a
hearing in that regard.” (Recusal S.F. 246).
Canon 3C (1)(a) expressly includes as a grounds for disqual-
ification any instance where the judge has “personal know!-
edge of disputed evidentiary facts concerning the
proceeding.” In the quoted portion from the Statement of
Facts, the judge indicated unquestionably his personal
knowledge of disputed evidentiary facts. For this reason
alone, the Court should have recused himself from further
hearings in the case.
B. Personal Bias or Prejudice.
Canon 3C further expressly holds that a court should
recuse himself in instances where he “has a personal bias or
prejudice concerning a party.” Appellants introduced into
evidence before Judge Rolston, a portion of the prior pro-
ceedings wherein Judge Walker stated “I hope that — it has
come to my attention, Mr. Allums, Mr. Holloway (one of the
Appellants) is making threats and this, that and the other
out there about the judge and this, that and the other.”
(Recusal S.F. 248). By so stating, Judge Walker clearly has
evidenced a bias or a prejudice, based on extra-judicial
sources, against one of the parties to the suit. In Withrow v.
Larkin, 421 U.S. 35, 47 (1975), the court held:
“The courts have identified various circumstances
which point to the conclusion that the possibility of
A-44
actual bias of the adjudicator is too high to be constitu-
tionally tolerable. The application of this principle is
not limited to cases in which the decision maker has an
‘interest’ in the result. Jt is applicable to cases where the
judge has been the target of personal abuse or criticism
from the party before him.”
Moreover, Appellants introduced into evidence before Judge
Rolston the fact that the trial court had, during the pen-
dency of proceedings before it, invited certain of the Brown-
ings into chambers. (Recusal S.F. 243). For this independent
reason, the Court should have disqualified himself.
C. Ex Parte Communications.
In Occidental Petroleum Corporation v. Chandler, 303 F.2d
55 (10th Cir. 1962), the court held the district judge to be
disqualified after making the following finding and
conclusion:
“The judge has conducted closed door hearings, meet-
ings and discussions in chambers at which some but not
all of the interested parties were present at the invita-
tion of the judge that the fact of such proceedings and
the matters which transpired therein should not be
reported to those attorneys.”
At the hearing before Judge Rolston, Appellants intro-
duced evidence in the form of excerpts from various of the
hearings before Judge Walker which disclosed numerous ex
parte communications. For example, Appellants introduced
the following interchange arising after Appellants were
handed an order entered without notice and hearing. When
the judge was questioned by Appellants as to the circum-
stances under which the order was entered, Mr. Kelsoe
stated in the record that “Your Honor called Judge Gibbs
and talked to him and told him about the situation and
Judge Gibbs told you that he would set the order aside.”
When questioned as to where ne derived this knowledge,
Mr. Kelsoe stated: “His Honor told me that around 10:00
o'clock or 10:30 Saturday morning. To which the Court
responded, “I called him Friday night ... and told him the
situation, told Kelsoe about it.” (Recusal S.F. 251-252).
A-45
Appeilants introduced other incidents in which Judge
Walker indicated on the record the fact of ex parte commu-
nications (Recusal S.F. 247; 248; 250; 255). Counsel for
Appellants testified without contradiction, to a consistent
pattern of ex parte conferences (Recusal S.F. 215-216; 240).
Moreover, Jack Ayres, counsel for the Brownings, necessar-
ily admitted being privy to an ex parte communication
between Snodgrass and Walker, stating: “That was the
argument that he made. Judge Snodgrass said ‘Why on
earth should we have two trials?’ I said he said that. This is
what he and Judge Walker talked about. Why should we
have two trials involving the same identical facts in separate
courts? Why should we? Why should we do that? Since the
evidence is going to be the same in both courts, why should
I do that?” (Recusal S.F. 112). Moreover, with respect to an
order jointly entered by Judge Snodgrass and Judge Walker,
without notice to Appellants or an opportunity to be heard,
the same counsel admitted being directed to draw the order
by Walker under circumstances where opposing counsel was
not present. (Recusal S.F. 320-321). Further, in testimony,
counsel for the Brownings admitted the fact of conversa-
tions with the Judge wherein counsel for Appellants were
not present. (Recusal S.F. 300). The consistent pattern of ex
parte conferences between the judge and counsel for the
Brownings destroyed any appearance of impartiality and
thus constitutes grounds for disqualification.
D. Representation of Judge Walker.
Numerous cases construing the similar language of 28
U.S.C. § 455(a) have held that the fact of prior representa-
tion of the judge by a party’s attorney might lead a reason-
able person to question the impartiality of the judge. Thus,
in Smith v. Sikorsky Aircraft, et al., 420 F.2d 61 (C.D. Cal.
1976), the district judge held himself to be legally disquali-
fied under the amended 28 U.S.C. § 455(a) and a virtually
identical Canon 3C of the federal Judicial Code solely by
virtue of the fact that the firm of attorneys representing
plaintiff had associated as counsel in another case another
attorney who had, 10 years earlier, represented the judge in
A-46
a personal matter before he became a judge and had also, 5
years earlier, represented the judge in his judicial capacity in
a mandamus proceeding. Recusing himself, the Court
stated:
“Because of the aforesaid, the undersigned judge,
although he expressly finds that he has no personal bias
or prejudice concerning any party herein or any per-
sonal knowledge of disputed evidentiary facts, and does
not have any other personal interest in the proceedings
herein which would tend to disqualify him, nevertheless
finds that his ‘impartiality might reasonably be ques-
tioned ...’”
In the instant case, counsel for the Brownings stipulated to
the fact that he had represented the judge in his personal
capacity (Recusal S.F. 148, 163). Moreover, Appellants
introduced evidence showing that the same counsel had rep-
resented the judge in his judicial capacity on several occa-
sions, and introduced evidence tending to show that said
counsel was presently representing the judge. (Recusal S.F.
152, Exhibits Dx. 11 19), (Recusal S.F. 167). In Potashnick v.
Port City Construction Company, 609 F.2d 1101 (5th Cir.
1980) the Court found that, when taken with the other cir-
cumstances involved, the fact that the judge was being rep-
resented, albeit only nominally, in other litigation by an
attorney in the case was grounds for disqualification. In so
holding the Court stated:
“Clearly the goal of the judicial disqualification statute
is to foster the appearance of mpartiality.”
The Court went on to note:
“Because 28 U.S.C. § 455(a) focuses on the appear-
ance of impartiality, as opposed to the existence in fact
of any bias or prejudice, a judge faced with a potential
ground for disqualification ought to consider how his
participation in a given case looks to the average person
on the street. Use of the word ‘might’ in the statute was
intended to indicate that disqualification should follow
A-47
if the reasonable man, were he to know all the circum-
stances, would harbor doubts about the judge’s impar-
tiality.”
Appellants introduced before Judge Rolston evidence
which showed not only representation of the judge by both
of the counsel for the Brownings, but also by one of the
counsel for the participants, by the counsel for the receiver,
and by the receiver himself. (Recusal S.F. 148-163, Exhibits
Dx. 14-20). Moreover, Appellants attempted to introduce
evidence showing the close inter-relationship of these
parties and the judge. This evidence was clearly material to
the determination of whether a reasonable man might ques-
tion the impartiality of the judge and was improperly
excluded.
Other cases have required disqualification of the judge
where one of the attorneys representing a party before the
judge had represented the judge. See, e.g., Rapp v. Van
Dusen, 350 F.2d 806 (3rd Cir. 1964), wherein the court
required disqualification of the judge where one of the attor-
neys had represented the judge in a mandamus proceeding,
i.e., in his judicial capacity; Texaco, Inc. v. Chandler, 354
F.2d 655 (10th Cir. 1966), wherein the Court held that where
one of the attorneys in the case represented the judge in a
separate damage suit, the judge was disqualified. Thus, the
fact of repeated representation by opposing counsel of the
judge both in his personal and judicial capacity represents
an instance where the impartiality of the judge must be
questioned. Accordingly, for this independent ground, Judge
Walker should have recused himself and the motion for
recusal should have been granted.
E. Consistent Pattern of Ex Parte Orders.
At the hearing before Judge Rolston, Appellants intro-
duced through excerpts of the Statement of Facts from prior
hearings before Judge Walker, and through testimony, the
fact that the judge had entered numerous orders without
according Appellants the basic rudiments of due process.
(Recusal S.F. 132-145). Appellants further testified that cer-
A-48
Ee er
tain of these orders issued immediately after ex parte con-
ferences (Recusal S.F. 140), and counsel for plaintiffs admit-
ted at least one instance in which an order entered without
notice or hearing arose directly from an ex parte communi-
cation between said counsel and the judge. (Recusal S.F.
250). Appellants submit that a consistent pattern of ex parte
orders demonstrate, conclusively, an instance where the
impartiality of the judge might reasonably be questioned.
Appellants submit that each of the foregoing matters calls
into question the impartiality of Judge Walker, and thus,
under applicable law constitutes an independent ground for
disqualification. Moreover, the cumulative effect of the fore-
going can leave no question as to whether or not a reason-
able man might question the impartiality of the judge.
Accordingly, the overruling of the motion constitutes a clear
abuse of discretion. This Court, on this independent basis,
should reverse and remand the case with directions that
the trial court enter an order granting Appellant’s Motion
to Recuse.
A-49
APPENDIX 4
NO. 82-5742-I
IN THE DISTRICT COURT
DALLAS COUNTY, TEXAS
162ND JUDICIAL DISTRICT
FAIRWAY LAND COMPANY, et al.,
US.
HUMBLE EXPLORATION COMPANY, et al.,
US.
JANE H. BROWNING, et al.
MOTION TO RECUSE
COME NOW Humble Exploration Company, Inc., Pat S.
Holloway, Hollway Exploration Corporation and Sterling
Pipeline Company, (hereinafter “Movants”) and move this
Court to recuse himself, or, alternatively, in the event that
this Court declines to do so, that he make proper and imme-
diate request under TEX.REV.CIV.STAT.ANN. Art. 200a
and Rule 18a of the Texas Rules of Civil Procedure of the
presiding judge of the first administrative judicial district
that the presiding judge hear, or assign another judge of the
administrative district to hear this motion, and in support
thereof would show the court as follows:
I.
Movants would show this Court that they presently have
on file herein Pleas of Privilege and Pleas in Abatement
wherein they assert that this Court has no jurisdiction to
proceed in either the action brought by Fairway Land Com-
pany, et al. or the cause of action attempted to be brought
herein by the Browning Interests. With respect to the latter
action, this Court has previously overruled Movants’ Pleas
in Abatement and has set the matter for trial on July 6,
1982. This Court has yet to set for trial before a jury
A-50
FAN RN ta OAR Ber BR i Vem Oran
Movants’ Plea of Privilege. Without in any way waiving
their claim that this Court has no jurisdiction to proceed,
Movants request that this Court recuse himself in both
matters.
Il.
Under the Constitution and laws of the State of Texas
and of the United States, Movants have the right to have
their case heard and adjudicated before a judge who is fair
and impartial and who conducts his proceedings in accor-
dance with the various canons of the Code of Judicial Con-
duct. Under Canon 3c of the Code this Court should
disqualify himself in situations where his impartiality may
reasonably be questioned. Canon 3c provides in relevant
part as follows:
“(1) A judge should disqualify himself in a proceeding
in which his impartiality might reasonably be ques-
tioned, including, but not limited to, instances where:
(a) He has a personal bias or prejudice concerning
a party,...
(c) Or any other interests that could be substan-
tially affected by the outcome of this proceeding.”
ITI.
Movants would show this Court that the impartiality of
this judge might reasonably be questioned, or that the judge
may appear to be less than impartial for the following
reasons:
(a) Movants believe that this Court has either initiated
or considered numerous ex parte communications with
counsel for the Brownings and/or Fairway Land Company,
et al. concerning the proceedings pending before him;
(b) Movants believe and assert that this Court has failed
to accord them their full rights to be heard according to law
and has entered numerous orders without notice and with-
out a hearing, all of which have been against, and in severe
derogation of the rights of Movants;
A-51
(c) Movants believe that this Court has in the past been
represented by counsel for Fairway Land Company, et al.
and by counsel for the Brownings and that this Court is
being presently represented by counsel for the Brownings,
who are in fact, parties in interest in this action. By virtue
of present representation, this Court has need to consult
with such counsel and has ongoing relations with these
parties which may be affected by this Court’s rulings in this
court; —
(d) Movants assert that this Court, in ruling on the
Brownings’ petition for declaratory relief, over Movants’
demand for a jury trial, has summarily denied Movants
their fundamental rights to a jury.
(e) This Court has indicated in remarks from the Bench
that it has received ex parte communications and that it has
accepted as true, or assumes to be true, many of the dis-
puted fact issues in this case.
(f) Movants believe that this Court has made public
statements concerning the merits of this case, which evi-
dence prejudgment of facts in dispute.
For the foregoing reasons, Movants assert that the impar-
tiality of this court may reasonably be questioned, and urge
that in order to avoid the appearance of impropriety this
Court should recuse himself in favor of a Court to be
assigned by the presiding judge.
IV.
Movants would show that under Art. 200a and Rule 18, if
this Court declines to recuse himself he shall forward to the
presiding judge of the administrative judicial district an
order of referral, this motion and any pleadings in response
thereto and request that the presiding judge hear or assign
this motion for hearing upon notice to all parties herein.
Movants would further show this Court that this Court
should make no further orders and take no further action in
this case pending the hearing and disposition of this motion.
A-52
we A Ps RR aR Sie WOE Srna abl we
WHEREFORE, PREMISES CONSIDERED, Movants
pray that upon hearing of this motion, this Court recuse
himself, or, in the event that this Court declines to do so,
that he make proper request under Rule 18a and Art. 200a
and that pending the determination of this motion, he take
no further action in this cause.
Respectfully submitted,
/s/ JAMES H. KEAHEY
James H. Keahey
Bar No. 11138000
414 Brady Lane
Austin, Texas 78746
(512) 327-0941
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the forego-
ing Motion to Recuse was hand delivered to all counsel of
record on this 25th day of June, 1982.
/s/ JAMES H. KEAHEY
A-53
VERIFICATION
The STATE OF TEXAS
COUNTY OF DALLAS
BEFORE ME, the undersigned authority, on this day per-
sonally appeared James H. Keahey, who, being by me first
duly sworn, did on his oath depose and say Attorney for
Movants in the above styled proceedings, and that as such
he is authorized to make this affidavit and that he has read
the foregoing Motion To Recuse and that the facts stated
therein and the allegations therein made are true and
correct.
/s/ JAMES H. KEAHEY
SUBSCRIBED AND SWORN TO before me this the 24th
day of June, 1982.
/s/ Pat McKEOWN
Notary Public in and for
Dallas, Dallas County, Texas
My Commission expires:
April 7, 1984
A-54
APPENDIX 5
NO. 82-5742-I
IN THE DISTRICT COURT
DALLAS COUNTY, TEXAS
162ND JUDICIAL DISTRICT
FAIRWAY LAND COMPANY, et al.,
US.
HUMBLE EXPLORATION COMPANY, INC., et al.,
US.
JANE H. BROWNING, et al.
SUPPLEMENTAL MOTION TO RECUSE
TO THE HONORABLE MORRIS M. ROLSTON:
COME NOW Humble Exploration Company, Inc., Pat S.
Holloway, Holloway Exploration Corporation and Sterling
Pipeline Company (hereinafter “Movants”) and having pre-
viously filed herein their Motion to Recuse, which motion
has been set for hearing, file this their Supplemental Motion
to Recuse, and would show this Court additional grounds for
granting the relief requested in the Motion to Recuse, as set
forth following:
I.
In addition to those reasons set forth in paragraph III of
the Motion to Recuse, Movants would show this court that
the impartiality of the Honorable Dee Brown Walker might
reasonably be questioned, or that he may appear to be less
than impartial for the following reasons:
(a) Movants believe and assert that this court has
acted in such a manner as could reasonably be believed
to evidence a bias in favor of both the Plaintiffs and the
Browning Interests, and counsel for such parties, and a
bias against Movants and their counsel;
A-55
(b) Movants believe that this court, in entering
various orders without notice and proper hearing and in
setting other hearings on an unreasonably accelerated
basis, has denied Movants due process under the state
and federal constitution.
WHEREFORE, PREMISES CONSIDERED, Movants
pray that the relief requested in their Motion to Recuse be
in all things granted.
Respectfully submitted,
/s/ JAMES H. KEAHEY
James H. Keahey
Bar No. 11138000
414 Brady Lane
Austin, Texas 78746
(512) 327-0941
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the forego-
ing Supplemental Motion to Recuse was hand delivered to
all counsel of record on this 1st day of July, 1982.
/s/_ JAMES H. KEAHEY
James H. Keahey
A-56
eueebhe
Pts pes creer eso
VERIFICATION
The STATE OF TEXAS
CouNTY OF DALLAS
BEFORE ME, the undersigned authority, on this day per-
sonally appeared James H. Keahey, wiio, being by me first
duly sworn, did on his oath depose and say that he is the
Attorney for Movants in the above-styled proceedings, and
that as such he is authorized to make this affidavit and that
he has read the foregoing Suppiemental Mction To Recuse
and that the facts stated therein and the allegations therein
made are true and correct.
/s/_ JAMES H. KEAHEY
James H. Keahey
SUBSCRIBED AND SWORN TO BEFORE ME this the
30th day of June, 1982.
/s/ Kay HANKS
Notary Public in and for
the State of Texas
My Commission Expires: Kay HANKS
1-25-86 Printed Name of Notary
A-57
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.