Opposition Brief — Brown v. Vial, Hamilton, Koch & Knox

Supreme Cairt, U.S.

Ek BD

SEP 6 1989

JOSEPH F. SPANIOL, JR.

CLERK

No. 89-227

In The

Supreme Court of the United States

OCTOBER, 1989 TERM

RON BROWN,

Petitioner-Appellant,

v.

VIAL, HAMILTON, KOCH & KNOX, et al.,

Respondents-Appellees

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

From Case Number 88-1482

RESPONDENTS MEMBERS INSURANCE GROUP

RUTH HUNTER, LEONARD ADKINS

BRIEF IN RESPONSE TO PETITION FOR

CERTIORARI OF APPELLEES

WALTER DAVIS & ASSOCIATES

Patrick A. Teeling

2116 RPR Tower

Lock Box 319

Plaza of the Americas

Dallas, Texas 75201

(214) 969-5969

Attorneys for

MEMBERS INSURANCE GROUP

RUTH HUNTER, LEONARD ADKINS

September, 1989

J)

1

CERTIFICATE OF INTERESTED PARTIES

Pursuant to the provisions of Rule 22, Rule 33 and Rule

34 of the Rules of the Supreme Court, the undersigned

counsel of record certifies that the following listed persons

have an interest in the outcome of this case. These repre-

sentations are made in order that the Judges of this Court

may evaluate possible disqualification or recusal.

The pa.ties are as follows:

Petitioner-Appellant:

Ron Brown

Respondents-Appellees:

Vial, Hamilton, Koch & Knox

Byron L. Falk

Touchstone, Bernays, Johnston, Beall & Smith

Wade C. Smith

Sidney H. Davis, Jr.

Passman, Jones, Andrews & Holley

Shannon Jones, Jr.

Johnson, Bromberg & Leeds

Robert R. Roby

Robert W. Hartson, Inc.

Robert W. Hartson

State Unauthorized Practice of Law Committee,

State Bar of Texas

Jim Bloom a/k/a “James D. Blume”

State Farm Mutual Automobile Insurance Co.

Harlan D. Holiner

Donovan Elliott

Ohio Casualty Insurance Co.

Trelby Edwards

Dick Gallatin

Fireman’s Fund Insurance Co.

Ron Watson

Van Sims

Members Insurance Group

Ruth Hunter

Leonard Adkins

il

Attorneys for the parties are as follows:

1. James E. Coleman, Jr.

Theresa A. Couch

Carrington, Coleman,

Sloman & Blumenthal

200 Crescent. Court

Suite 1500

Dallas, Texas 75201

Counsel for Respondents-Appellees Vial, Hamilton, Koch

& Knox; Byron L. Falk; Touchstone, Bernays, Johnston,

Beall & Smith; Wade C. Smith; Sidney H. Davis, Jr.;

Passman, Jones, Andrews & Holley; Shannon Jones, Jr.;

Johnson, Bromberg & Leeds; Robert R. Roby; Robert W.

Hartson, Inc.; Robert W. Hartson; State Farm Mutual

Automobile Insurance Company; Harlan D. Holiner;

Donovan Elliott; Ohio Casualty Insurance Coinpany;

Trelby Edwards; Dick Gallatin; Fireman’s Fund

Insurance Company; Ron Watson; and Van Sims

2. Gregory S.C. Huffman

THOMPSON & KNIGHT

3300 First City Center

1700 Pacific Avenue

Dallas, Texas 75201

Counsel for Appellee State Unauthorized Practice of

Law Committee, State Bar of Texas

3. Mark A. Ticer

COAKLEY & ASSOCIATES

1420 W. Mockingbird Lane

Suite 800

Dallas, Texas 75247

Counsel for Appellee Jim Bloom

lll

4. Mr. Patrick A. Teeling

Mr. William A. Forteith

WALTER Davis & ASSOCIATES

2116 RPR Tower, LB 319

Plaza of the Americas

Dallas, Texas 75201-2882

Counsel for Appellees Ruth Hunter, Leonard Adkins

and Members Insurance Group

CIGNA Insurance Company

Petitioner-Appellant is appearing pro se:

Ron Brown

3614 Marvin D. Love Freeway at S. Tyler

Dallas, Texas 75224

Appellants, Pro Se

2 /)

Patrick A. Teeling

iv

TABLE OF CONTENTS

SUBJECT

CERTIFICATE OF INTERESTED

(ENR ply et Berth ee ae ae pee

STATEMENT OF THE NATURE

Se I oe ccc cA Nias hy aethnws.ch oo0uss

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TABLE OF CITATIONS

I. CASES

CASE PAGE

Bates vs. State Bar of Arizona, 433 U.S. 350,

97 S.Ct. 2691, 53 L.Ed.2d 810 (1977) ........... 5

Hoover v. Ronwin,

ee es ee ED a bk ch ace veksacnaceesanan 5

Parker v. Brown,

ee ee ee CD oo nck eb nc kbc koe bee eebeeees

Middlesex Ethics Committee v. Garden State

qo

Bar Association, 457 U.S. 423 (1982) ........... 6

Pilla v. American Bar Association,

ep £ g : he Dy. | ee 5

Taylor vs. Montgomery, 539 F.2d 715 .

a fe SS Gere ae rr reer se 4

Turner vs. American Bar Association,

407 F. Supp. 451, (N.D. Tex., 1975) ............ 4

Brown vs. Unauthorized Practice of Law Committee,

742 S.W. 2nd 34 (Tex.Civ.App.-Dallas 1987) ....

aos

II. CONSTITUTIONAL PROVISIONS

Ill. STATUTES

No. 89-227

In The

Supreme Court of the United States

OCTOBER, 1989 TERM

RON BROWN,

7 Petitioner-Appellant,

v.

VIAL, HAMILTON, KOCH & KNOX, et al.,

Respondents-Appeliees

On Petition for Writ of Certiorari to the

United States Cour. »f Appeals for the Fifth Circuit

From (‘ase Number 88-1482

RESPONDENTS MEMBERS INSURANCE GROUP

RUTH HUNTER, LEONARD ADKINS

BRIEF IN RESPONSE TO PETITION FOR

CERTIORARI OF APPELLEES

STATEMENT OF THE ISSUES

IN SUPPORT OF DENIAL OF

THE PETITION FOR CERTIORARI

I.

THE DISTRICT COURT CORRECTLY GRANTED,

AND THE COURT OF APPEALS CORRECTLY

UPHELD, APPELLEES’ MOTION FOR DISMISSAL AS

SUPPORTED BY THE EVIDENCE IN RECORD WHICH

ESTABLISHES THAT PETITIONER-APPELLANT

WAS ENGAGED IN AN UNLAWFUL BUSINESS AND

THAT PETITIONER-APPELLANT HAD RECEIVED

DUE PROCESS IN THE STATE DISTRICT AND

APPELLATE COURTS.

2

Il.

THE DISTRICT COURT CORRECTLY GRANTED,

AND THE COURT OF APPEALS CORRECTLY

UPHELD, APPELLEE’S MOTION FOR DISMISSAL

WHICH IS SUPPORTED BY EVIDENCE ATTACHED

TO THE MOTION TO DISMISS WHICH ESTABLISHES

THAT NONE OF THE APPELLEES VIOLATED

THE EQUAL PROTECTION CLAUSE OF THE

14TH AMENDMENT OF THE UNITED STATES

CONSTITUTION.

Ill.

THE DISTRICT COURT CORRECTLY DISMISSED,

AND THE COURT OF APPEALS CORRECTLY

UPHELD, PETITIONER-APPELLANT’S CAUSE OF

ACTION BASED UPON FEDERAL AUTHORITY AND

DUE PROCESS.

ARGUMENT

Appeilee Members Insurance Group, Ruth Hunter and

Leonard Adkins (hereinafter referred to as “Respondents”)

agree that this Honorable Court has the jurisdiction for this

appeal from the United States Court of Appeals for the

Fifth Circuit based upon the provisions of 28 U.S.C. 1257,

but there is no statute in question which is seriously con-

templated to be in conflict with the United States Constitu-

tion or the treaties and laws of the United States. Therefore,

pursuant to the provisions of Rule 16.1(c) of the Rules of

the Supreme Court, Respondents urge that the questions on

which the decision of this cause depends are so unsubstan-

tial as not to need further argument or review. By decisions

reviewing similar situations and cases of unauthorized prac-

tice of the law and insurance claims adjusting, this Honor-

able Court has articulated a clear and unequivocal standard

3

for Federal Courts and the States to follow in these areas.

There is no diversity of opinion in any-of the Courts of

Appeal on this issue, nor diversity of opinion with any state

court. Thus, Brown’s Petition for Certiorari is inconsequen-

tial and should be denied.

STATEMENT OF THE NATURE OF THE CASE

Appellant Ron Brown (hereinafter “Petitioner” or

“Brown”) brought this suit against Respondents seeking

federal protection of his business activities as an agent or

representative in the settlement of personal injury, property

and insurance claims. Respondents agree with Petitioner’s

Statement of the Case in his brief.

This is an appeal from a dismissal by the United States

District Court for the Northern District of Texas, the Hon-

orable A. Joe Fish, United States District Judge, presiding,

and the upholding of said dismissal by the Court of Appeals

for the Fifth Circuit by unpublished opinion by Judge

Reavley.

STATEMENT OF FACTS

Petitioner was the Defendant in a suit brought in Texas

State Court proceeding brought by the State of Texas for

the unauthorized practice of law. The State of Texas pre-

vailed in the proceeding, resulting in a final judgment, prior

to the dismissal of the Petitioner’s action in the Court

below. Petitioner ignores the Younger abstention doctrine in

his Statement of Facts regarding the issues below.

The Motion to Dismiss filed by Respondents in the

United States District Court, below, unlike the other

Respondents in this appeal, is supported by Plaintiff's

Answers to Interrogatories which were attached to the

Motion to Dismiss. This is not to downplay the relevance

4

nor authority cited by the other Respondents in their briefs,

but rather is merely noted to the Court in support of the

action taken by the Trial Court and Court of Appeals.

In summary, Respondents disagree with the characteriza-

tion of the activities and the characterization of the decision

by the Texas state courts as a “sham judgment”. The activ-

ities conducted by Petitioner are violative of statutory law

and the unauthorized practice of law in the State of Texas.

ARGUMENT AND AUTHORITIES

Petitioner brought this action -against Respondents,

_claiming that his business as an agent or representative of

others in the settlement of personal injury and insurance

claims was afforded protection of the United States Consti-

tution and the anti-truct laws of the United States. The

State of Texas had obtained a prior judgment in Texas state

court which specifically found that the activities by Peti-

tioner violated the State’s law regarding the unauthorized

practice of law and State insurance law. Petitioner appealed

the State District court judgment, which resulted in an Peti-

tioner finding in favor of the Respondents, supporting the

State District Court’s judgment. At all times in the state

court proceedings, Petitioner chose to represent himself and

had full opportunity to, and did, raise the same issues in the

state court as represented in the United States District

Court below. Brown vs. Unauthorized Practice of Law Com-

mittee, 742 S.W. 2nd 34 (Tex.Civ.App.-Dallas 1987). Peti-

tioner exhausted all avenues of appeal regarding the issues

which were presented, or which could have been presented,

during the state court proceedings.

The principal reason for the dismissal of Petitioner’s

claims is the lack of standing. The principal decision in this

area is Turner vs. American Bar Association 407 F.Supp. 451,

(N.D. Tex., 1975), aff'd. sub nom.; Taylor vs. Montgomery,

5

539 F.2d 715 (7th Cir. 1976); Pilla v. American Bar Associa-

tion, 452 F.2nd 56 (8th Cir. 1976) at 479 in which the Court

stated that in an anti-trust action, “the plaintiff must suffi-

ciently allege and demonstrate that his legally cognizable

business or property has been injured as a proximate result

of the alleged violation of the anti-trust laws.” As a matter

of law, from the authorities cited by the Respondents, there

exists no right or privilege under the First or Sixth Amend-

ments to the United States Constitution to have an unli-

censed layman represent other parties in litigation or

settlement of insurance disputes. Thus, the claims by Peti-

tioner are void and are the proper subject of dismissal, and

the denial of the Petition for Certiorari. The Respondents

urged that this cause of action be classified for what it is,

and not for how it is creatively styled. In this appeal, Peti-

tioner sues the Respondents to force them to permit him to

practice law and to represent insurance claimants, despite

the fact that he is not licensed by the State of Texas for

either of these activities. Petitioner’s lack of licensing is evi-

denced by his response to Appellee’s Interrogatory Number

26, which was attached to the Motion to Dismiss below. The

Texas Legislature has mandated that attorneys be licensed

and that State Insurance adjusters be licensed. Petitioner

seeks to have a federal court overrule these state decisions,

and to substitute the decision by the federal court for that of

the state. Such a position completely ignores the Younger

abstention doctrine. Clearly, the practice of law and settle-

ment of insurance disputes are matters of vical state interest

and sovereignty. Bates vs. State Bar of Arizona, 433 U.S. 350

at 359-60, 97 S.Ct. 2691 at 2696-97, 53 L.Ed.2d 810 (1977).

In Hoover v. Ronwin, 466 U.S. 558 (1984) at 569, the Court

citing Parker v. Brown, 317 U.S. 341 (1943), declined to

“construe the Sherman Act as prohibiting the anti-competi-

tive actions of a state acting through its legislature ...

When a state legislature adopts legislation, its actions con-

stitute those of the State ... and are ipso facto exempt from

6

the operation of anti-trust laws ... The Court ... has found

the degree to which the state legisiature or Supreme Court

supervises its representative to be relevant to the inquiry...

When the conduct is that of the sovereign itself, on the

other hand, the danger of unauthorized restraint of trade

does not arise.” The State of Texas in these situations seeks

to prevent fraud from being perpetrated upon its citizens by

unauthorized and unlicensed representatives. Similarly, the

State of Texas seeks to prevent fraud and incompetence

from being perpetrated upon its citizens by those unlicensed

to practice law. These activities have been recognized by the

Supreme Court as matters of vital state interest in Middle-

sex Ethics Committee v. Garden State Bar Association, 457

U.S. 423 (1982) at 433-434.

Petitioner has failed to demonstrate a denial of due pro-

cess, bad faith, harassment, or any other exceptional cir-

cumstance which justifies intervention by Federal Court.

Petitioner has had the opportunity to raise these issues time

and time again in the state court proceedings and in his

appeal, but has failed to do so. Therefore, as a matter of law,

Petitioner is collaterally estopped from raising these issues

again in Federal Court. There is no evidence that Petitioner

has introduced and the Court below reflecting that the State

Court action was a “sham” as he has depicted same. The

lower Court afforded Petitioner the opportunity to respond

to the Motions to Dismiss filed by Respondents, but Peti-

tioner offered no evidence or authority to support his posi-

tion that all of the courts and judges which heard his appeal

in the state court proceedings deprived him of civil rights or

federally protected constitutional rights.

As was noted in the Respondents’ Brief, in the Support of

the Motion to Dismiss in the District Court and in their

brief before the Court of Appeals, and in all of the briefs and

motions filed by Petitioner, he has repeatedly cited inap-

propriate and inapplicable authorities. He picks and choses

7

language from court decisions which seem appropriate, but

when read in context of the decision, are inopposite of the

decision. Petitioner ignores the fact that his “business” has

been repeatedly adjudicated by both Federal and State

Courts, including this Honorable Supreme Court, as being

illegal, and not protected by Federal Law, including anti-

trust laws. In order to obtain protection of the Sherman Act,

the business conducted by a party must be legal. Such is

simply not the case in the current matter. Therefore, no fed-

eral protection should be afforded to illegal activities con-

ducted by Petitioner.

CONCLUSION

The Court of Appeals and the District Court below prop-

erly granted the Appellees’ Motion to Dismiss inasmuch as

there is no evidence of any probative force or genuine issue

of fact. The activities conducted by Petitioner are those of

an illegal nature which violate State Law concerning issues

of vital importance to the State. The trial court below

afforded Petitioner full opportunity to introduce factual evi-

dence to support his contention that he was denied due pro-

cess in his State Court proceedings. Pursuant to the

arguments involved in collateral estoppel and the Younger

abstention doctrine, the trial court properly dismissed his

action for the reasons and by the authorities cited in the

Memorandum Order of May 12, 1988. Thus, the claims by

Petitioner were properly dismissed, because as a matter of

law, his activities are not protected, there has been no viola-

tion of due process, and Petitioner has not cited any author-

ity to the Court to permit jurisdiction to lie. The Answers by

Petitioner to Interrogatories establishes these facts as well.

Therefore, no issue exists which should disturb the Judg-

ment and Order of the Honorable Courts below.

8

WHEREFORE, PREMISES CONSIDERED, Respon-

dents-Appellees Members Insurance Group, Ruth Hunter

and Leonard Adkins respectfully move this Honorable

Supreme Court to dismiss the Petition for Certiorari and

alternatively to sustain and affirm the decision of the Court

of Appeals for the Fifth Circuit and the United States Dis-

trict Court for the Northern District of Texas.

Respectfully submitted,

WALTER Davis & ASSOCIATES

2116 RPR Tower, LB 319

Plaza of the Americas

Dallas, Texas 75201-2882

(214) 969-5969

By: )

Patrick A. Teeling

Bar I.D. #19760500

William A. Forteith

Bar I.D. 407267500

9

CERTIFICATE OF SERVICE

I certify that copies of the Respondents-Appellees’ Brief

have been mailed to the Petitioner and all interested parties

via certified mail, return receipt requested, this day

os ae

Patrick A. Teeling