Opposition Brief — Spriggins v. First National Bank of Lea County

+. Supreme Court, U.S.

IS FILED

») MAR 2© 1986

‘JOSEPH F. SPANIOL, JR.

—GLERK

In The

Supreme Court of the United States

October Term, 1985

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ihe

JOHNNIE C. SPRIGGINS and

MARIA Y. SPRIGGINS,

Petitioners,

vs.

FIRST NATIONAL BANK OF LEA COUNTY,

Respondent.

ia’

Vv

ON PETITION FOR CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ro

Vv

BRIEF IN OPPOSITION

fy

Stanuey C. Sacer

Sacer, Curran, STuRGEs

& Trppsr, P.C.

Post Office Box 3587

Albuquerque, YM 87190

(505) 884-5100

Counsel of Record for Respondent

Joe A. STuRGES AND

Pau. E. Houston

Post Office Box 3587

Albuquerque, NM 87190

(505) 884-5100

Co-counsel

COCKLE LAW BRIEF PRINTING CO., (800) 835-7427 Ext. 333

QUESTION PRESENTED

The Spriggins’ Petition states the questions presented

in a manner inconsistent with the facts and the opinion

of the Court of Appeals. The following is a more accu-

rate statement of the issue:

When a lawsuit is dismissed in accordance with the

terms of a fully-executed settlement agreement, is the de-

nial of a motion to set aside that dismissal, made one day

short of one year after entry of the dismissal, an abuse

of discretion?

TABLE OF CONTENTS

Page

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ES EET SOIL Te Troe I LT TE 2

Reasons for Denying the Writ:

Point I:

The Petition for Certiorari was not timely

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Point II:

The subject matter of the Petition for Cer-

tiorari does not come within Rule 17, Rules

of the Gapremse CO, ee.

Point III:

The Petition for Certiorari is utterly devoid

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TABLE OF AUTHORITIES

Federal Trade Commission v. Mimneapolis-H oney-

well Regulator Co., 344 U.S. 206 (1952)

Federal’s, Inc. v. Edmonton Investment Co., 555

F.2d 577 (6th Cir. 1977)

Gilbert v. United States, 479 F.2d 1267 (2d Cir.

ESSA 8S Fe See ee

Morris v. Adams-Millis accu 758 F.2d 1352

« | Sha

Pierce v. Cook & Co., Inc., 518 F.2d 720 (10th Cir.

1975), cert. denied, 423 U.S. 1079 (1976)

Puget Sound Power & Light Co. v. County of

King, 264 U.S, 22 (1924)...

Sadowski v. Bombardier, Ltd., 539 F.2d 615 (7th

Cir. 1976)

Smith v. Widman Trucking & Excavating, Inc.,

627 F.2d 792 (7th Cir. 1980)

Toledo Scale Co. v. Computing Scale Co., 261 U.S.

399 (1923)

Zimmerman v. Quinn, 744 F.2d 81 (10th Cir. 1984)

STATUTE:

28 U.S.C. Section 2101 (0) nn. ncccccceccesccsseesseeesen

Rwu.Lges:

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No. 85-1440

In The

Supreme Court of the United States

October Term, 1985

raY

—S

JOHNNIE C. SPRIGGINS and

MARIA Y. SPRIGGINS,

Petitioners,

vs.

FIRST NATIONAL BANK OF LEA COUNTY,

Respondent.

ra’

Vv

ON PETITION FOR CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

nr

Vv

BRIEF IN OPPOSITION

—_—

a4

OPINIONS BELOW

The Memorandum Opinion and Order of the District

Court, not reported, appears as Appendix A of the Peti-

tion. The Order anc Judgment of the Court of Appeals

for the Tenth Circuit, unreported as yet, appears as Ap-

pendix C of the Petition.

o

INTRODUCTION

There are three basic reasons for denying the writ.

First, the Petition was not timely filed. Second, the opin-

ion from which Petitioners seek this Court’s relief does

not deal with a subject the character of which falls within

the purview of Rule 17, Rules of the Supreme Court. Third,

the Petition lacks merit.

>)

REASONS FOR DENYING THE WRIT

POINT I:

The Petition for Certiorari was not timely filed.

The above-entitled cause was briefed and submitted

for decision to the Tenth Cireuit Court of Appeals on

November 13, 1984. The Court of Appeals’ Order and

Judgment was rendered in an opinion filed on November

27, 1985. The Petition for Writ of Certiorari was not filed

until Thursday, February 27, 1986, more than ninety days

after the entry of the final opinion by the Court of Ap-

peals. The period for applying for a Writ of Certiorari

has not been extended by a Justice of this Court, pursuant

to 28 U.S.C. Section 2101(c) and Rule 20, Rules of the

Supreme Court.

Petitioners seek to come within the ninety-day limi-

tation period by virtue of the denial of Petitioners’ re-

quest for rehearing filed November 21, 1985. However,

that request for rehearing was addressed to the Court of

Appeals’ opinion filed November 8, 1985. That opinion

was withdrawn by the Court of Appeals on November 27,

1985, concurrently with the filing of its Order and Judg-

ment on November 27, 1985. The Court of Appeals’ Order

denying the Request for rehearing, dated December 6,

1985, had nothing whatsoever to do with the opinion of

the Court of Appeals filed November 27, 1985, and cannot

toll the time for filing the Petition which ended Tuesday,

February 25, 1986. Therefore, Petitioners’ application for

a Writ of Certiorari is out of time and should be denied.

See, Puget Sound Power & Light Co. v. County of King,

264 U.S. 22 (1924); Federal Trade Commission v. Minne-

apolis-Honeywell Regulator Co., 344 U.S. 206 (1952); see

also, Toledo Scale Co. v. Computing Scale Co., 261 U.S.

399 (1923).

POINT II:

The subject matter of the Petition for Certiorari

does not come within Rule 17, Rules of the Su-

preme Court.

Petitioners seek to have this Court review a discre-

tionary act of the District Court which denied Petition-

ers’ motion for Rule 60(b) relief. Petitioners’ motion to

set aside the dismissal of their lawsuit pursuant to the

provisions of a settlement agreement between the parties

was filed one day short of the maximum one year allowed

for relief under Rule 60(b) and did not deal with the merits

of the underlying case. Instead, the relief sought by Plain-

tiffs’ motion was to have the District Court set aside a

dismissal of the underlying lawsuit. The dismissal had

been entered pursuant to the provisions of a settlement

agreement which had been fully executed, by all parties,

more than one year prior to the filing of Petitioners’ mo-

tion. It is, therefore, quite apparent that Petitioners do

not seek review of a decision which even approaches those

which come within the purview of Rule 17, Rules of the

Supreme Court. ~<a

In unanimously affirming the District Court’s use of

its discretionary powers in denying Petitioners’ motion

for Rule 60(b) relief, the Tenth Circuit Court of Appeals

did not render a decision in conflict with the decision of

any other Federal Court of Appeals on the same matter.

Furthermore, contrary to Petitioners’ specious assertion

(Petition for Writ, p. 13), the Court of Appeals’ decision

in no way touches upon a Federal question. Rather, the

only question and only issue subject to review was wheth-

er the District Court’s denial of Petitioners’ Rule 60(b)

motion was an abuse of judicial discretion. Also, the

Court of Appeals’ opinion does not conflict with any

state court decision nor has the Court of Appeals departed

from the accepted and usual course of judicial proceed-

ings, or sanctioned such a departure by the District Court

so as to call for an exercise of this Court’s power of su-

pervision. See, Rule 17, Rules of the Supreme Court. In-

stead, the Court of Appeals’ decision parallels and fol-

lows the decisions of other Federal Courts of Appeal on

similar matters and in similar situations. Zimmerman

v. Quinn, 744 F.2d 81 (10th Cir. 1984); Pierce v. Cook &

Co., Inc., 518 F.2d 720 (10th Cir. 1975), cert. denied, 423

U.S. 1079 (1976); Morris v. Adams-Millis Corporation, 758

F.2d 1352 (10th Cir. 1985) ; Sadowski v. Bombardier, Ltd.,

539 F.2d 615 (7th Cir. 1976); Smith v. Widman Trucking

& Excavating, Inc., 627 F.2d 792 (7th Cir. 1980) ; Federal’s,

Inc. v. Edmonton Investment Co., 555 F.2d 577 (6th Cir.

1977).

5

POINT III:

The Petition for Certiorari is utterly devoid of

merit.

The District Court carefully and thoroughly consid-

ered Petitioners’ arguments and assertions, in their en-

tirety, whether based on fact or fancy, and denied the

Petitioners’ motion for Rule 60(b) relief. See, Appendix

A of the Petition for Certiorari. Thereafter, the Court

of Appeals reviewed the decision of the District Court and

unanimously concluded that the District Court had not

abused its discretion by denying the relief sought. See,

Appendix C to the Petition for Certiorari. As is adequate-

ly demonstrated by the opinion of the Federal District

Court for the District of New Mexico and the unanimous

opinion of the Tenth Circuit Court of Appeals affirming

the District Court’s denial of Petitioners’ motion for

Rule 60(b) relief, together with the cases cited therein

(see, e.g., Gilbert v. United States, 479 F.2d 1267 (2d Cir.

1973) ; Zimmerman, supra; Morris, supra; Sadowski, su-

pra; and Smith, supra), the Petition for Writ of Cer-

tiorari is utterly devoid of merit.

WHEREFORE, Respondent requests that this Court

deny the Petition for Certiorari to the Tenth Cireuit Court

of Appeals.

Respectfully submitted,

Sranuey C. Sacer

Sacer, CurRkAN, STURGES

& Tepper, P.C.

Post Office Box 3587

Albuquerque, NM 87190

(505) 884-5100

Counsel of Record for Respondent

Jor A. StuRGES AND

Pau. E. Houston

Post Office Box 3587

Albuquerque, NM 87190

(505) 884-5100

Co-counsel