Opposition Brief — Bennett v. International Bank of Miami, N. A.

!

No. 87-1336

in the

Dupreme Court

United States

OCTOBER TERM, 1987

GENE LEE BENNETT,

Petitioner,

vs.

INTERNATIONAL BANK OF MIAMI, N.A.,

Respondent.

On Petition for Writ of Certiorari to the

Court of Appeal of Florida, Third District

RESPONDENT'S BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TO THE COURT OF

APPEAL OF FLORIDA, THIRD DISTRICT

W. Barry Blum

Counsel of Record

David B. McCrea

TEW JORDEN & SCHULTE

701 Brickell Avenue

Miami, Florida 33131

Counsel for Respondent,

The International Bank of Miami, N.A.

(i)

DESIGNATION OF CORPORATE RELATIONSHIPS

International Bancorp of Miami, Inc.

International Bancorp of Miami N.V.

Granvalour Holdings, S.A.

(ii)

TABLE OF CONTENTS

DESIGNATION OF CORPORATE RELATION-

II.

THE PETITION FOR CERTIORARI

SHOULD BE DISMISSED BECAUSE

PETITIONER DIED ELEVEN MONTHS

BEFORE THE PETITION WAS FILED

THIS COURT SHOULD NOT EXERCISE

ITS DISCRETION TO GRANT CERTIO-

-RARI BECAUSE THE FLORIDA COURT

JUDGMENT IS CONSISTENT WITH

ALL OTHER RELEVANT AUTHORITY

AND UPHOLDS THE ASSERTED FED-

ERAL TITLE, RIGHT, PRIVILEGE OR

A. The Judgment Below is Consistent with

Every Other Case Addressing §24, Fifth

of the National Bank Act ............

B. Review by Certiorari is Rarely Granted

When a Specially Set Up Federal Claim

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(iii)

TABLE OF AUTHORITIES

Page _

Cases

Alfano v. First National Bank,

111 A.D.2d 960, 490 N.Y.S.2d 56

SS 4

Armano v. Federal Reserve Bank,

468 F. Supp. 674 (D. Mass. 1979)............... 4

Bollow v. Federal Reserve Bank,

650 F.2d 1093 (9th Cir. 1981),

cert. denied, 455 U.S. 948 (1982) ................ 4

Citizens State Bank v. Libertelli,

215 N.J. Super. 190, 521 A.2d 867 (App. 1986) ... 4

Copeland v. Melrose National Bank,

229 A.D. 311, 241 N.Y.S. 429

Te wees sacvecteesauaae 3, 4,5

Dove v. United States,

ob ove da wcceccscecsvesees 2

First National Bank v. Reynolds,

491 N.E. 2d 218 (Ind. Ct. App. 1986) ........... 4-5

Hawkins v. Peoples Federal Savings & Loan

, “ati

155 Mich. App. 237, 399 N.W.2d 484 (1986) ...... 4

Katpu v. Pinkham,

ee Sec seesecsssee 2

Kemper v. First National Bank,

94 Ill. App. 3d 169, 418 N.E.2d 819 (1981)....... 4

Logan County National Bank v. Townsend,

EE 6

Michigan National Bank v. Robertson,

EE ee 6

Mitchell v. American Savings & Loan Association,

122 Ariz. 138, 5938 P.2d 692 (1979).............. 5

National Bank of North America v. Associates of

Obstetrics & Female Surgery, Inc.,

eso dachsecseéeveeteccce 5-6

Pennwell v. Newland,

ee er re 2

(iv)

TABLE OF AUTHORITIES (Continued)

Rohde v. First Deposit National Bank,

127 N.H. 107, 497 A.2d 1214 (1985) ...........

Roy v. Woonsocket Institution for Savings,

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Third National Bank in Nashville v. Impac Lid.,

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Van Slyke v. Andrews,

146 Minn. 316, 178 N.W. 959 (1920) ..........

Warden v. Palermo,

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Yates v. Jones National Bank,

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Statutes and Rules

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1

SUMMARY OF ARGUMENT

The petition for certiorari should be dismissed because

the named petitioner, Gene Lee Bennett, died eleven

months before the petition was filed. The executor of

Bennett’s will was substituted for Bennett as a party in

the Florida state trial court proceeding in October, 1987.

Bennett, a deceased person, can not properly invoke this

Court’s jurisdiction.

Further, the petition demonstrates no grounds for

discretionary review. The Florida court of appeal’s deci-

sion is in accord with every other court addressing the

validity of a severance pay provision or other contractual

provision restricting a national bank’s authority to dis-

charge its officers at pleasure pursuant to 12 U.S.C. §24,

Fifth. The Florida court of appeal, moreover, upheld the

right, privilege or immunity under the National Bank Act

asserted by The International Bank of Miami, N.A. This

Court very rarely has granted certiorari when a right

under the national banking laws has been upheld, rather

than denied, by a state court.

The petition for certiorari does not demonstrate that

the instant case merits discretionary review by this Court.

ARGUMENT

I. THE PETITION FOR CERTIORARI SHOULD

BE DISMISSED BECAUSE PETITIONER DIED

ELEVEN MONTHS BEFORE THE PETITION

WAS FILED

The instant petition was purportedly filed on behalf of

Gene Lee Bennett (“Bennett”). The petition fails to

inform the Court, however, that Bennett died on March 8,

1987. Indeed, a motion for substitution was filed by

Bennett’s counse! in the Florida state trial court proceed-

2

ing and an order substituting the executor of Bennett's

will in that proceeding was entered on October 27, 1987.

(App. 2-6) Thus, the filing of the instant petition in

Bennett’s name is improper.

The certiorari jurisdiction of this Court has not prop-

erly been invoked. This Court’s rules contemplate the

filing of a writ of certiorari only by a “party.” Sup. Ct. R.

19.1, .4. A deceased person cannot reasonably be consid-

ered a “party” who can properly invoke this Court’s

jurisdiction. See Pennwell v. Newland, 180 F.2d 551 (9th

Cir. 1950) (deceased man has no privilege of appeal;

appeal by non-existent person is neither unsubstantial

“procedural irregularity” nor “harmless error’).

This Court has dismissed petitions for certiorari when

it was learned that petitioner had died. Warden v.

Palermo, 431 U.S. 911 (1977); Dove v. United States, 423

U.S. 325 (1976); see Katpu v. Pinkham, 206 U.S. 566

(1907) (appeal dismissed). The instant petition similarly

should be dismissed. In Palermo and Dove, the petitioners

were at least alive when the petitions were filed invoking

this Court’s jurisdiction.

Moreover, Rule 40 of this Court does not apply to

permit substitution at this time. Rule 40 applies

“‘(w]henever any party shall die after filing a notice of

appeal to this Court or a petition for writ of certio-

rari....”” Sup. Ct. R. 40.1 (emphasis added). This

Court's provisions for substitution of a party presuppose

that the Court’s jurisdiction was invoked by a proper and

qualified appellant or petitioner, and not a deceased

person.

Here, petitioner having died prior to the filing of the

petition, an executor having been appointed and a motion

for substitution having been made and granted in the trial

ee

3

court, the deceased Bennett was not properly a “party”

able to invoke this Court’s certiorari jurisdiction.’ The

petition for certiorari to the Court of Appeal of Florida,

Third District should be dismissed.

fl. THIS COURT SHOULD NOT EXERCISE ITS

DISCRETION TO GRANT CERTIORARI BE-

CAUSE THE FLORIDA COURT JUDGMENT IS

CONSISTENT WITH ALL OTHER RELEVANT

AUTHORITY AND UPHOLDS THE ASSERTED

FEDERAL TITLE, RIGHT, PRIVILEGE OR

IMMUNITY

A. The Judgment Below is Consistent with Every

Other Case Addressing §24, Fifth of the

National Bank Act

The instant petition does not merit review in light of

the considerations governing certiorari set forth in the

Rules of this Court. The petition certainly does not

demonstrate that the Florida court of appeal’s judgment

is “in conflict with the decision of another state court of

last resort or of a federal court of appeals.” Sup. Ct. R.

17.1(b). Indeed, the only two cases specifically address-

ing the validity of a severance pay provision respecting a

discharged national bank officer are in accord with the

Florida court of appeal. Rohde v. First Deposit Nat'l Bank,

127 N.H. 107, 497 A.2d 1214 (1985); Copeland v. Melrose

Natl Bank, 229 A.D. 311, 241 N.Y.S. 429 (App. Div.

1930).

Similarly, courts are in agreement that any contractual

provision that restricts a national bank board of directors’

‘The fact that the executor is not the petitioner raises questions as

to the authority of Bennett's counsei to proceed with this petition and

whether there is a proper “petitioner” involved against whom, for

example, the Court may tax costs under Sup. Ct. R. 50.

4

right to discharge an officer with no liability under the

contract is void under the National Bank Act, 12 U.S.C.

§24, Fifth. Kemper v. First Nat’l Bank, 94 [ll. App. 3d 169,

418 N.E.2d 819 (1981); Van Slyke v. Andrews, 146 Minn.

316, 178 N.W. 959 (1920); Alfano v. First Nat’l Bank, 111

A.D.2d 960, 490 N.Y.S.2d 56 (App. Div. 1985).

Cases construing analogous federal or state statutes

also are consistent with the Florida court of appeal’s

decision. Bollow v. Federal Reserve Bank, 650 F.2d 1093

(9th Cir. 1981), cert. denied, 455 U.S. 948 (1982) (con-

struing 12 U.S.C. $341, Fifth regarding discharge of

Federal Reserve Bank officer); Armano v. Federal Reserve

Bank, 468 F. Supp. 674 (D. Mass. 1979) (same); Citizens

State Bank v. Libertelli, 215 N.J. Super. 190, 521 A.2d 867

(1986) (construing New Jersey state banking law by

reference to 12 U.S.C. §24, Fifth); Hawkins v. Peoples

Fed. Sav. & Loan Ass’n, 155 Mich. App. 237, 399 N.W.2d

484 (1986) (interpreting Federal Home Loan Bank

Board-mandated bylaw, 12 C.F.R. $544.5, by reference to

12 U.S.C. §24, Fifth); Roy v. Woonsocket Inst. for Sav., 525

A.2d 915 (R.1. 1987) (construing Rhode Island statute by

reference to 12 U.S.C. §24, Fifth).

First National Bank v. Reynolds, 491 N.E.2d 218 (Ind.

Ct. App. 1986), cited by petitioner, is not in conflict with

the Florida court of appeal’s judgment. In Reynolds, the

court went to great lengths to distinguish the case from

the situation in the Copeland and Rohde cases relied upon

by the Florida court of appeal. The Reynolds court rested

its decision solely on the fact that the officer in that case

resigned for a specifically contemplated reason and was

5

net discharged, as was Bennett in this case. As the

Reynolds court explained:

The terms “dismiss” and “resign” are not sy-

nonymous, indeed they are antithetical.... Clearly,

the terms are mutually exclusive.

491 N.E.2d at 222.

Without addressing the soundness of the Reynolds

decision, it clearly is not in conflict with the Florida court

of appeal’s judgment.” As petitioner acknowledges, Ben-

nett was discharged. The Copeland — Rohde line of cases

eontrol and are in accord.

B. Review by Certiorari is Rarely Granted

When a Specially Set Up Federal Claim is

Upheld

In the instant case, The International Bank of Miami,

N.A. raised a defense founded upon the National Bank

Act to Bennett’s contractual claim to the interpleaded

fund. The Florida court of appeal upheld the bank’s

federal law-based claim.

Historically, in cases where certiorari is sought under

28 U.S.C. §1257(3) (1948) based upon a claim of title,

right, privilege or immunity under the national banking

laws, this Court more readily has exercised its discretion-

ary jurisdiction when the specially set up federal claim

was denied by a state court. See, e.g., Third Natl Bank in

Nashville v. Impac Lid., 482 U.S. 312 (1977), aff’g 541

S.W.2d 139 (Tenn. 1976); National Bank of N. Am. v.

Associates of Obstetrics & Female Surgery, Inc., 425 U.S.

* Milchell v. American Sav. & Loan Ass’n, 122 Ariz. 138, 593 P.2d

692 (1979), cited by petitioner, also has no pertinence to this matter

given that the case was decided entirely under Arizona state law and

did not even address the National Bank Act.

6

460 (1976), vacating Associates of Obstetrics & Female

Surgery, Inc. v. Apollo Prods., Inc., 542 P.2d 1079 (Utah

1975); Michigan Nat'l Bank v. Robertson, 372 U.S. 591

(1963), vacating Hills v. Burnett, 172 Neb. 370, 109

N.W.2d 739 (1961); Yates v. Jones Nat’? Bank, 206 U.S.

158 (1907), rev’g 74 Neb. 734, 105 N.W. 287 (1905);

Logan County Nat’l Bank v. Townsend, 139 U.S. 67 (1891),

aff’g 3 S.W. 122 (Ct. App. Ky. 1887).

The instant matter, where the federal claim was sus-

tained and, indeed, where petitioner asserts that the

federal issue should not control, is one that does not

merit discretionary review. This is especially so where, as

here, there is an established and consistent line of case

law upholding the claimed federal title, right, privilege or

immunity.

CONCLUSION

For the foregoing reasons, the petition for writ of

certiorari to the Court of Appeal of Florida, Third Dis-

trict should be dismissed or denied.

W. Barry Blum

Counsel of Record

David B. McCrea

TEW JORDEN & SCHULTE

701 Brickell Avenue

Miami, Florida 33131

(305) 371-2600

Counsel for Respondent, The

International Bank of Miami, N.A.

Appendix

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App. 2

3u The Cirrnit Court of The

11th Judicial Cirruit in and

for Bade County, Florida

GENERAL JURISDICTION DIVISION

CASE NO.: 84-16667 (30)

FLORIDA BAR NO.: 265152

SOUTHEAST BANK, a national banking corporation,

Plaintiff,

vs.

THE INTERNATIONAL BANK OF MIAMI, N.A., a

national banking association, GENE LEE BENNETT,

ALBERTO GONZALEZ, GUILLERMO ROSSELL,

and INTERNATIONAL BANK OF FLORIDA,

ve Defendants.

THE INTERNATIONAL BANK OF MIAMI, N.A.,

a national banking association,

Cross-Plaintiff,

vs.

GENE LEE BENNETT and CARLTON STEWART,

Cross-Defendants.

MOTION FOR SUBSTITUTION OF PARTY

Margaret E.S. Bennett, personal representative for the

Estate of Gene Lee Bennett, respectfully moves this

Honorable Court for an Order substituting her, as per-

sonal representative for the Estate of Gene Lee Bennett,

as a party for Gene Lee Bennett in this action. As

Wht haat SR ate MATT ik OILS Sob od LEM I LBS eres ©

App. 3

grounds therefor, Mrs. Bennett would show unto the

Court that:

1. Mr. Bennett has passed away. Mrs. Bennett has

been appointed as personal representative for his Estate.

Attached to this motion is a copy of the Court Order

appointing her.

2. Mrs. Bennett therefore moves to be substituted, in

her capacity as a personal representative for the Estate,

as a party in place of Mr. Bennett.

Respectfully submitted,

BAILEY, DAWES & HUNT

a professional association

1390 Brickell Avenue

Penthouse

Miami, Florida 33131

Tel.: (305) 374-5505

By: /s/

Sara Soto

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of

the foregoing was delivered by mail this 22nd day of

September, 1987, to David McCrea, Esq., Finley, Kumble,

Wagner, Heine, Underberg, Manley, Myerson & Casey,

777 Brickell Avenue, Fifth Floor, Miami, Florida 33131.

/s/

Of Counsel

App. 4

[INFORMATION NOT MATERIAL TO ORDER EXCLUDED)

Attorney or Party Without Attorney: (Name and Address)

JOHN R. VAN SICKLE

Attorney at Law Ste 220C

11858 Bernardo Plaza Court

San Diego, California 92128

Telephone No.: (619) 487-4011

Attorney for (Name): Petitioner, Margaret E. S. Bennett

Superior Court of California, County of San Diego

Street Address: 220 West Broadway

Mailing Address: P. O. Box 128

City and Zip Code: San Diego, California 92112

State of (Name): Gene Lee Bennett, Decedent

ORDER FOR PROBATE

Order Appointing: 8 Executor

& Order Authorizing Independent Administration of

Estate

® with full authority

Date of hearing: +30-87 Time: 9:00 a.m. Dept/Rm: 21 Judge: Pan! E.

Overton

THE COURT FINDS

a. All notices required by law have been given.

b. Decedent died on (date): March 8, 1987

®& a resident of the California county named above

c. Decedent died & testate and decedent's will dated: December 21, 1984

was admitted to probate by Minute Order on (date): 4-30-87

THE COURT ORDERS

(Name): Margaret E. S. Bennett

is appointed

& Executor of the decedent's will

and letters shall issue on qualification.

& Full: Authority is granted to administer the estate under The Indepen-

dent Administration of Estates Act.

® Bond is not required.

PAUL EUGENE OVERTON

Judge of the Superior Court

Filed Probate Division

April 30, 1987

Case Number: 143104

Robert D. Zumwalt, Clerk

App. 5

3u The Cirruit Court of The

11th Judicial Cirrwit in and

for Bade County, Florida

GENERAL JURISDICTION DIVISION

CASE NO.: 84-16667 (30)

SOUTHEAST BANK, a national banking corporation,

Plaintiff,

Vv.

THE INTERNATIONAL BANK OF MIAMI, N.A., a

national banking association, GENE LEE BENNETT,

ALBERTO GONZALEZ, GUILLERMO ROSSELL,

and INTERNATIONAL BANK OF FLORIDA,

Defendants.

THE INTERNATIONAL BANK OF MIAMI, N.A.,

a national banking association,

Cross-Plaintiff,

v.

GENE LEE BENNETT and CARLTON STEWART,

Cross-Defendants.

AGREED ORDER SUBSTITUTING PARTY

THIS CAUSE came before the Court on the parties’

agreement to the granting of Margaret E.S. Bennett's

Motion For Substitution of Party, and the Court having

reviewed the file, and being otherwise fully advised in the

premises, it is hereby,

App. 6

ORDERED AND ADJUDGED, as follows:

1. Mrs. Bennett’s motion is granted.

2. Margaret E.S. Bennett, in her capacity as personal

representative for the Estate of Gene Lee Bennett, is

hereby substituted as a party for Mr. Bennett.

DONE AND ORDERED in chambers at Dade County,

Florida this 27th day of October, 1987.

/s/

Cireuit Court Judge

Copies furnished to:

David McCrea, Esq.

Sara Soto, Esq.