# Opposition Brief — Spriggins v. First National Bank of Lea County > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1528%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1986 - **Citation:** 475 U.S. 1122 ## Text +. 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 fy 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 NE IN oo oitcnedcrecisenreneeestioncenediniiinen faiecie Giatiotiaaialbened 1 ES EET SOIL Te Troe I LT TE 2 Reasons for Denying the Writ: Point I: The Petition for Certiorari was not timely SINS ccosisceusiasdccnsmaciconn apsaneieieiediactoeaae 2 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 OE TRI oinpiccestictacnsnenneanean sr eacuadiny 4) ili 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: a ct ionic a a oe rr i 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. ~