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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1988
- **Citation:** 485 U.S. 988

## Text

!

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,
Oe RO es Re ee ee

Third National Bank in Nashville v. Impac Lid.,
EE ko 5 6 ve as a.euieaedsnee es

Van Slyke v. Andrews,
146 Minn. 316, 178 N.W. 959 (1920) ..........

Warden v. Palermo,
os ed sea eeae knee

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1338%3A2. Public record. Not legal advice.