Opposition Brief — Hall v. Martin

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No. 93-1298 t 391994 |

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In The _\nonsctlielaesaiaman |

Supreme Court of the United States

October Term, 1993

&

WILLIAM E. HALL, ET AL.,

Petitioners,

V.

JIMMIE LYNN MARTIN, ET AL.,

Respondents.

*

On Petition For Writ Of Certiorari

To The Supreme Court Of Texas

-

JIMMIE LYNN MARTIN, WILLIAM SINGLETON, III

AND BRENT MARTIN’S BRIEF IN OPPOSITION

4

CHt WILLIAMSON AMANDA S. HItty

WetzeL. & HERRON WILTON F. CHALKER

2170 Buckthorne Place CHALKER, Bair & ASSOCIATES,

Suite 300 yw

The Woodlands, Texas 77380 55 Waugh Drive, Suite 500

Telephone: (713) 363-5050 Houston, Texas 77007

Facsimile: (713) 363-0077 Telephone: (713) 862-5599

Attorney for Respondent, Facsimile: (713) 868-9444

William Singleton, III Attorneys for Respondent,

Jimmie Lynn Martin

James S. Hite

WHITTINGTON, PFEIFFER AND

VACEK

2600 South Gessner

Suite 600

Houston, Texas 77063

Telephone: (713) 789-8850

Facsimile: (713) 789-0033

Attorney for Respondent,

Brent Martin

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Petitioners assert the following questions in their

petition for writ:

1. Whether the Equal Protection Clause of the Four-

teenth Amendment prevents application of the parental

immunity doctrine to bar Petitioner Katherine Singleton’s

action for negligence against the non-adopting stepfather,

mother and deceased father.

2. Whether the Due Process Clause of the Four-

teenth Amendment prevents application of the parental

immunity doctrine to bar Petitioners’ action for negli-

gence against her non-adopting stepfather, mother and

deceased father.

Petitioners asserted these questions for the first time

in their Motion for Rehearing in the Beaumont Court of

Appeals. There was never any issue properly presented

to or decided by the state courts regarding any federal

constitutional right. Therefore, these questions are not

properly presented here for the first time. Additionally,

there are alternative, independent and adequate state

grounds to support the state’s judgment, therefore, this

writ is improper and should be dismissed.

LIST OF PARTIES

Petitioners

WILLIAM E. HALL, a/n/f

of KATHERINE

SINGLETON and

KATHERINE SINGLETON

Attorneys of Record

William E. Hall

Law Offices of William E.

Hall, Jr.

804 West Dallas, Suite 9

Conroe, Texas 77301

Attorney Ad Litem

Mr. K. Michael Mayes

Law Offices of K. Michael

Mayes

P. O. Box 3007

Conroe, Texas 77305-3007

Telephone No.:

(713) 350-0388

Respondents

JIMMIE LYNN MARTIN

William Singleton, III

Attorneys of Record

Amanda S. Hilty/

Wilton F. Chalker

Chalker, Bair &

Associates, P.C.

55 Waugh Drive, Suite 500

Houston, Texas 77270

Telephone No.:

(713) 862-5599

Fax No.: (713) 868-9444

Tim Herron/Che’ D.

Williamson

Wetzel & Herron

2170 Buckthorne Place,

Suite 300

The Woodlands, Texas

77380

LIST OF PARTIES —- Continued

BRENT MARTIN

Telephone No.:

(713) 363-5050

Fax No.: (713) 363-0077

James S. Hile

Whittington, Pfeiffer &

Vacek

2600 South Gessner,

Suite 600

Houston, Texas 77063

Telephone No.:

(713) 789-8850

Fax No.: (713) 789-0033

Other Persons Having an Interest:

KAREN HICKS, JAMES

RICHARD HICKS

(Defendants)

COUNTY OF

MONTGOMERY

(Defendants) ~

JAMES CHRISTOPHER

HICKS

(Defendants)

Mr. Ruben Hope Jr.

RUBEN HOPE &

ASSOCIATES

P.O. Box 3188

Conroe, Texas 77305-3188

Telephone No.:

(409) 539-7828

M. Kaye Appelwhite

301 N. Main Street

Conroe, Texas 77301

Telephone No.:

(409) 539-7828

Mr. James Bournerges

Lueders & Bournerges

9525 Katy Freeway,

Suite 222

Houston, Texas 77024

Telephone No.:

(713) 464-3383

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ...........----ccececeee:

g: 3 Re nen eer repre ii

TABLE OF CONTENTS....... ae laceacwestael Tami iv

TABLE OF AUTHORITIES ..........-...-eeeeeeees Vv

STATEMENT OF THE CASE...........---05 000005 2

STATEMENT OF JURISDICTION............---++5- 2

STATEMENT OF FACTS........-20:cececcscccccee: 5

ERS SII oo occ ssoscdndcunseneesss 7

WAIVER OF CONSTITUTIONAL CLAIMS ......... s

PARENTAL IMMUNITY DOCTRINE IS

COOPIBTETUITIOIEAL, 6c occ cccsccccvccccccucessess: 12

STANDARD OF REVIEW FOR CONSTITUTIONAL

SN > Si ora hota cp ateneeress 13

DUE PROCESS/OPEN COURTS DOCTRINE ....... 22

COC T AIG ccc wicccteccccneccessecvvesevesssseee 28

Vv

TABLE OF AUTHORITIES

Page

Unitep States SupreME Court Cases

Bankers Life and Casualty Co. v. Crenshaw, 486

ee Fe Pree erro reer eye Ce PETE Peer 10

Bell Telephone Co. of Pennsylvania v. Van Dyke,

Pe Ce REPU eh cae h ee ca asdiceeesceieeendvaats 4

Chappell v. Bradshaw, 128 U.S. 132 (1888) ............ 11

Chicago I and L.R. v. McGuire, 196 U.S. 128

oo RR reper rs rere ror eT ry my pr ere or 11

Craig v. Boren, 429 U.S. 190 (1976) .................. 15

Ferri v. Ackerman, 444 U.S. 193 (1979) ............... 17

Gibbs v. Zimmerman, 290 U.S. 326 (1933)............. 11

Ginsberg v. New York, 390 U.S. 629 (1968)............ 19

Herb v. Pitcairn, 324 U.S. 117 (1944).................. 4

Herndon v. Georgia, 295 U.S. 441 (1935), rehearing

COMIN, BER UW GO CORI ic cecncesccuredesiscdads 11

Jett Brothers v. Carrollton, 252 U.S. 1 (1919).......... 11

Lassiter v. Department of Social Services of

Durham Co., 452 U.S. 18 (1981), rehearing

SPN, TS UD. FEF CPR G i ove cvccctbncssveretoics 19

Martinez v. California, 444 U.S. 277 (1980)......... i, ae

Massachusetts Board of Retirement v. Murgia, 427

os See Fer rr enerr rs seeeees 13

McCoy v. Shaw, 277 US. SOO (1927) 2c ccccvccccvcsunes 4

Michigan v. Long, 463 U.S. 1032 (1983)........... 45

Old Dearbourn Distributing Co. v. Seagram-

Distillers Corp., 299 U.S. 183 (1936).............22- 16

vi

TABLE OF AUTHORITIES — Continued

Page

Osborne v. Clark, 204 U.S. 565 (1960) .............4.. 11

Parham v. Hughes, 441 U.S. 347 (1979) ........055. 13, 16

Pierce v. Society of Sisters, 268 U.S. 510 (1925)........ 18

Planned Parenthood of Southeastern Pennsylvania v. 7

Casey, 112 S.Ct. 2791 (199Z)....ccccisescevevcccees 19

Plyler v. Doe, 457 U.S. 202 (1982)............. 13, 14, 15

Radio Station WOW v. Johnson, 326 U.S. 120

0 en ee ee 26

Republic Natural Gas Co. v. Oklahoma, 334 U.S.

62 (1947) oo cece ccc cece cu cucucucucucucucevcuene. 3

Siegert v. Gilley, 500 U.S. 226 (1991), rehearing

denied, 111 S.Ct. 2290 (1991) ... 0... 0. ccc cece 14

Sochor v. Florida, 504 U.S. __, 119 L.Ed.2d 326

DED xc.5-6660660 00040055000 abe e000 0s e506445584864565 4

Stanley v. Illinois, 405 U.S. 645 (1972). .......6..00 05 17

Stembridge v. State of Georgia, 343 U.S. 541

> « 12

Taylor v. Illinois, 484 U.S. 400 (1988)..............05. 10

Webb v. Webb, 451 U.S. 493 (1981).............0.0005. )

Wisconsin v. Yoder, 406 U.S. 205 (1972)............... 18

Vii

TABLE OF AUTHORITIES - Continued

Page

Unitep States Feperat Courts

Brunner v. Brunner, 770 F. Supp. 517 (W.D. S.

| ae Py er ne oe nee 18

Catlin v. Ambach, 644 F. Supp. 161 (N.D. N.Y.

| CET CTU TET Pere PPC P TT Cee eT ter ete 15, 16

Cunningham v. Beavers, 858 F.2d 269 (5th Cir.

i OEP ETT ET eT TORT COT ere eT TT EET TE 14

Mathis v. Ammons, 453 F. Supp. 1033 (E.D. Tenn.

MU ro det a ae oe Cee rnnn 28

Moran v. Beyer, 734 F.2d 1245 (7th Cir. 1984) ........ 14

Wilson v. Wilson, 742 F.2d 1004 (1984)............... 27

State Courts

Aboussie v. Aboussie, 270 S.W.2d 636 (Tex. Civ.

App. — Fort Worth 1954, writ ref’d)............ 18, 20

Barlow v. Iblings, 261 lowa 713; 156 N.W.2d 105

SPU coos ccuessucenceseneeehadercnuedenetenscbans 20

Begley v. Kohl and Madden Printing, Ink Co., 157

Conn. 445; 254 A.2d 907 (1969)...............005. 20

Bennett v. Bennett, 194 Ga. App. 197, 390 S.E.2d

ee SE a oc cL iat lacs sbeeciedibenbeues 28

Boyle v. Tully, 134 S.W.2d 500, (Tex. Civ. App. -

Galveston 1939, writ ref’d.).................... 26, 27

Bondurant v. Bondurant, 386 So.2d 705 (La. App.

PS 60s Fe wh omaaeceeecades cosseenud inn whn wae in 25

Brown v. State, 808 S.W.2d 628 (Tex. App. -

Se rs Ie an ccccceececdnes 16

Buchanan v. Rose, 159 S.W.2d 109 (Tex. 1942) ......... 4

Vili

TABLE OF AUTHORITIES —- Continued

Page

Clark v. Waggoner, 452 S.W.2d 437 (Tex. 1970) ........ 4

Clark v. State of Texas, 665 S.W.2d 476 (Tex. Cr.

App. 1904) =... cccccccccsvcccevecccesusessccovores 14

DeLay v. DeLay, 337 P. 2d 1057 (1959)...........64-- 27

Drescher v. Morgan, 251 S.W.2d 173 (Tex. Civ. ;

App. - Fort Worth 1952, writ ref’d n.re.)......26, 27

Farley v. M & M Cattle Co., 529 S.W.2d 751

CRs PEE 6 oc c6iasenavaedustabadedesduree ws tasen ts 4

Felderhoff v. Felderhoff, 473 S.W.2d 928 (Tex.

DP lived s dan ccbbeuctdaceadscacedtiecdiass: 18, 20, 26

Fogel Ltd. A.T. v. Shoemake, 795 S.W.2d 903 (Tex.

App. - Fort Worth 1990, rev’d on other

grounds), 826 S.W.2d 933 (Tex. 1992).............. 21

Franks v. Franks, 138 S.W. 1110 (Tex. Civ. App.

oo I Te ee OO in so cand shiv cebsdebecs canvas 27

Fugate v. Fugate, 582 S.W.2d 663 (Mo. 1979)......... 25

Gillett o. Gillett, S35 FP. 2d 75 (IGP) «cc cccccaccvcces 28

Gorman v. State, 42 Tex. 221 (1875)................4.. 27

Gunn v. Rollings, 157 S.E.2d 590 (1967).............. 27

Hall v. Martin, 851 S.W.2d 905 (Tex. App. -

Beaumont 1993, writ denied) ................. passim

Hanks v. City of Port Arthur, 121 Tex. 202, 48

foe Eg. SP Prrrrrer rrr errrreeerreeee 23

Hewellette v. George, 9 So. 885 (1891) .............6-. 20

Holodook v. Spencer, 324 N.E. 2d 338 (N.Y. 1974)..... 19

Houston and Great Northern Railroad Co. v. Miller,

FE PR EP CHT ceca cre Ci cevedederdisteeveentsri ae

ix

TABLE OF AUTHORITIES - Continued

Page

In the Interest of G.M., 596 S.W.2d 846 (Tex.

POUNDS 800 cnn co sebeseerwesdedsesacidareeeswketeres 17

Jilani By and Through Jilani v. Jilani, 767 S.W.2d

Oe Ges SON orn kbd vio ss as 6b 500K cian 18, 20, 25, 26

Lawber v. Doil, 191 Ill.App.3d 323, 547 N.E.2d

Joe (in. App. 4. Dist, 1909) 2... cc cccccccccccccees 28

London Guarantee & Accident Co., Ltd. v. Smith,

CD Pee FOE GU os td ep Fevcvewasedvscserecess 27

Lucas v. United States, 757 S.W.2d 687 (Tex.

BRU shes 56 es ehsndes sehen esouiaded sks caksne kbar 9, 13

Newsome v. Department of Human Resources, 405

DE2G 61 (Ga. App. 1999) 2. cc ccccccccccccccccvers 28

Orefice v. Albert, 237 So.2d 142 (Fla. 1970)........... 20

Price v. Price, 732 S.W.2d 316 (Tex. 1987)............. 9

Rosenberg v. Silver, 762 F.2d 255 (1985) .............. 27

Sax v. Votteler, 648 S.W.2d 661 (Tex. 1983)........ aa, 20

Shoemake v. Fogel, Ltd., 826 S.W.2d 933 (Tex.

POEL Ep ee bavedereshiis phere uewaeee 18, 20, 21, 23, 24

Sibley v. Board of Sup’rs of Louisiana, 462 So.2d

149, 155, Opinion modified, 477 So.2d 1094

ee Peer eer re ere ey ror re Te 13

Skinner v. Whitley, 189 S.E.2d 230 (1972)............. 20

Sneed by McCullough v. Sneed, 705 $.W.2d 392

(Tex. App. - San Antonio 1986, writ ref'd

eS PPR NO Ee eet ene PP ay ee a a 24

Spring Branch 1.8.D. v. Stamos, 695 S.W.2d 556

(Tex. 1985), appeal dismissed, 475 U.S. 1001

i PPP Eye ee TCP EP rer Terror Ter Orr reer rr rere 13

TABLE OF AUTHORITIES - Continued

Page

Thelen v. Thelen, 435 N.W.2d 495 (Mich.App.

re ee rer ener men Ae Ap Si 28

Trudell v. Leatherby, 212 Cal. 678, 300 P. 7 (1931)..... 27

Van Wart v. Cook, 557 P.2d 1161 (1976).............. 27

White v. State, 661 P.2d 1272 (Mont. 1983)........... 14

Statutes & RuLes

U.S. Supreme Court Statutes and Rules 10.1(b)

ge. |, SRR be ey tere ne etapa op ye My tg Cay ge :

RSF aa Oe .. : er Prey er err pe ere he 9

CONSTITUTIONS

Penne “comet. Aa. Pe. 8 DD oo do'e 5 ceva scacccsenecss )

eT, ee ee eo ee eae cseeckaaubans 22

co ee ee ae errerrer er errr eee 22

United States Constitution:

Fourteenth Amendment...... 0, 12721. SS 2 Be

United States Constitution:

ee, Ses a Se oy Pele ena eens Wael 17

Soa SN ONE CO, Wes Sv ano ewheebebne ee keee sees 17

US. Comet. OG. ARV, SOC. Be ccc ccccccvsvtccess | Be

PERIODICALS

Hollister, Parent Child Immunity: A Doctrine In Search of

Justification, 50 Fordham L.Rev. 489, 494 (1981-82) ... 20

No. 93-1298

+

In The

Supreme Court of the United States

October Term, 1993

-

WILLIAM E. HALL, ET AL.,

Petitioners,

JIMMIE LYNN MARTIN, ET AL.,

Respondents.

¢

On Petition For Writ Of Certiorari

To The Supreme Court Of Texas

¢

JIMMIE LYNN MARTIN, WILLIAM SINGLETON, III

AND BRENT MARTIN’S BRIEF IN OPPOSITION

«

TO THE HONORABLE SUPREME COURT:

Respondents, Jimmie Lynn Martin, Brent Martin and

William Singleton, III, respectfully file this Brief in Oppo-

sition to Petitioners’ Writ of Certiorari and pray that the

Supreme Court dismiss or in the alternative deny the

Petition for Writ of Certiorari seeking review of the denial

of the Writ of Error of the Supreme Court of Texas and

the judgment of the Ninth Court of Appeals of the State

of Texas at Beaumont.

STATEMENT OF THE CASE

The action underlying this appeal is a claim for dam-

ages for personal injuries sustained by Katherine Sin-

gleton (an unemancipated minor), as a result of a

motorcycle accident in which Katherine Singleton was

involved, on or about June 2, 1987. The trial court granted

summary judgment in favor of Respondent, Jimmie Lynn

Martin, on February 5, 1991, against Plaintiff, William E.

Hall, Jr., a/n/f of Katherine Singleton, Counter-Plaintiffs,

James Richard Hicks and Karen Hicks, and Counter-

Plaintiff /Cross-Plaintiff Montgomery County. The trial

court also granted Respondents Brent Martin and William

Singleton, IIl’s summary judgment motions. The causes

of action against Respondents were severed and made

final. Petitioners filed their appeal to the Court of

Appeals, Ninth District of Texas at Beaumont. The Court

of Appeals affirmed the judgments of the trial court. Hall

v. Martin, 851 S.W.2d 905 (Tex. App. —- Beaumont 1993,

writ denied). The Texas Supreme Court denied Peti-

tioners’ Application for Writ of Error and this decision

became final on October 27, 1993.

*

STATEMENT OF JURISDICTION

The Plaintiff has invoked Supreme Court Rule 10

which states:

1. A review on writ of certiorari is not a mat-

ter of right, but of judicial discretion. A petition

for a writ of certiorari will be granted only when

there are special and important reasons therefor.

The following, while neither controlling nor

fully measuring the Court’s discretion, indicate

the character of reasons that will be consid-

ered: ...

(b) When a state court of last resort has

decided a federal question + a way that

conflicts with the decision of another state

court of last resort or of a United States

court of appeals.

For the Supreme Court to grant writ of certiorari

there must be a federal question involved. Whether there

is a federal question is the petitioner’s burden of proof.

Republic Natural Gas Co. v. Oklahoma, 334 U.S. 62 (1947).

The United States Supreme Court lacks jurisdiction

based upon affirmation of summary judgments on “ade-

quate and independent state grounds”. Michigan v. Long,

463 U.S. 1032, 1040 (1983). In Hall v. Martin, 851 S.W.2d

905 (Tex. App. - Beaumont 1993, writ denied), the court

affirmed the granting of summary judgments on two

separate grounds; 1) the parental immunity doctrine and

2) negligence and proximate cause. The Court of Appeals

specifically held “[a]s a separate, distinct and indepen-

dent basis for our affirmance of the judgments below, we

conclude that the movants have negated the issues of

negligence and proximate cause.” Id. at 910. The Court

found that there was no legal duty owed to Katherine

Singleton by her parents, Jimmie Lynn Martin, William

Singleton, III and Brent Martin and therefore no breach of

a duty. Furthermore, the court affirmed the granting of

the summary judgments in finding no proximate cause.

“The record negates proximate cause as to each appellee.”

Id. at 911.

Because the opinion in Hall rests upon “adequate and

indepencent state grounds”, the Petitioners’ Writ is not

reviewable by this Court. It is well settled law that writ

will not be granted where there are independent and

adequate state grounds to support the judgment. The

Court reconsidered this issue in Sochor v. Florida, 119

L.Ed.2d 326, 112 S.Ct. __, 504 U.S. ___ (1992), in which

the court stated that:

this court lacks jurisdiction to review a state

court’s resolution of an issue of federal law if

the state court’s decision rests on an adequate,

independent state ground . . . as it will if the

state court’s opinion indicates clearly and

expressly that the state’s ground is an alterna-

tive holding.

Id. at 337. This is only a restatement of the case law,

which is well settled on this issue. Herb v. Pitcairn, 324

U.S. 117 (1944), McCoy v. Shaw, 277 U.S. 300 (1927), Bell

Telephone Co. of Pennsylvania v. Van Dyke, 296 U.S. 533

(1935). The Texas state court’s opinion can not even

remotely be said to be grounded upon federal law. A

thorough reading of the Hall opinion clearly shows ade-

quate and independent state grounds for affirming the

summary judgments. Id. at 910-911. See also, Buchanan v.

Rose, 138 Tex. 390 159 &.W.2d 109 (1942); Farley v. M&M

Cattle Co., 529 S.W.2d 751 (Tex. 197&: and Clark v. Wag-

goner, 452 S.W.2d 437 (Tex. 1970). Therefore, all federal

constitutional arguments concerning the parental immu-

nity doctrine are not reviewable by this Honorable Court.

Michigan v. Long, 463 U.S. 1032 (1983). Based upon the

foregoing, this Court should respectfully decline to con-

sider this Writ of Certiorari.

In addition, the Petitioners fail to cite any cases that

support their position that there are conflicting state and

federal decisions. Petitioners merely restate the contents

of the United States Supreme Court Rule 10.1/%} and

10.1(c). Likewise, the invocation of this Court's jurisdic-

tion based upon the importance of the constitwtional

question involved is inappropriate based on the “ade-

quate and independent state grounds” that supported the

decision below. Michigan v. Long; Hall v. Martin.

+

STATEM* NT OF FACTS

Respondents, Jimmie Lynn Martin, Brent Martin and

William Singleton, III, challenge Petitioners’ Statement of

Facts in its entirety because of its argumentative and

exaggerated presentation, especially with respect to the

nature of Katherine Singleton’s injuries. Therefore,

Respondents present the following Statement of Facts in

addition to the chronicle of events as stated in the opin-

ion in Hall v. Martin.

This is a personal injury negligence action arising

from a motorcycle accident which occurred on or about

June 2, 1987, in Montgomery County, Texas. (See Tr. Vol.

II, #10, p. 185). Karen Hicks and James Richard Hicks

were the owner and orator (respectively) of the Honda

Hurricane Motorcycle involved in this accident. (See Tr.

Vol. II, #10, pp. 186-187). Katherine Singleton was riding

as a passenger on the Hicks motorcycle pursuant to a

request from Katherine Singleton. During the motorcycle

ride, Hicks lost control and/or was caused to lose control

of his motorcycle resulting in the accident made the basis

of this lawsuit. (See Tr. Vol. I, #10, pp. 186-187). As a

result, Katherine Singleton sustained injuries. (See Tr. Vol.

II, #10, pp. 249-250). At the time of the accident, Jimmie

Lynn Martin was unaware that her daughter would be

riding a motorcycle. (See Tr. Vol. I, #3, p. 39).

Respondent, Jimmie Lynn Martin, is the natural

mother of the minor, Katherine Singleton. William Sin-

gleton, III was Katherine’s natural father and Brent Mar-

tin is Katherine’s stepfather. At the time of the accident,

Katherine Singleton resided with and was cared for by

her mother, Jimmie Lynn Martin and stepfather, Brent

Martin. (See Tr. Vol. II, #10, pp. 249-250). Respondent,

Jimmie Lynn Martin was returning home from work at

approximately 4:45 p.m., on June 2, 1987, when she dis-

covered that her daughter had been involved in a motor-

cycle accident. Katherine Singleton was fourteen (14)

years old at the time of the accident. (See Tr. Vol. II, #10,

p. 241). Katherine Singleton had her mother’s permission

to ride her mo-ped in the neighborhood the day of the

accident. (See Tr. Vol. II, #10, p. 208). Katherine Singleton

did not ask for permission to ride Hicks’ motorcycle. The

Respondents take exception to the Petitioners unsubstan-

tiated assertion that Katherine Singleton “sustained per-

manent brain impairment”. Petitioners’ writ at 16. There

is no evidence in the record of the extent of Katherine

Singleton’s injuries.

Further, Jimmie Lynn Martin and William Singleton,

III were divorced in April of 1982 in Harris County, and

William Singleton, III was granted visitation and rights as

the possessory conservator. (Tr. Vol. III at 384-85). At the

time of the accident, William Singleton, III did not have

custody or control of his minor daughter who was resid-

ing with her mother. (Tr. Vol. III at 386). Respondent,

William Singleton, III, did not learn of the accident until

his daughter was at the hospital. At no time relevant to

this lawsuit did he give the minor plaintiff instructions

regarding the riding of a motorcycle, nor did he give her

permission to ride with James Hicks on his motorcycle.

(Tr. Vol. III at 346). At no time relevant to this lawsuit did

William Singleton have custody, or the right to control, or

supervise his daughter. William Singleton passed away

on June 3, 1992 after this appeal was taken and judgment

rendered.

Brent Martin, is the step-father of Katherine Sin-

gleton. (Tr. at 317, 389, 399). He received Katherine into

his home and held her out as a member of his family. He

assumed the care and support of Katherine on February

19, 1983. However, he never adopted Katherine and has

never been appointed as her conservator. On June 2, 1987,

nor on any other date, did Brent Martin have knowledge

that Katherine was riding a motorcycle. At no time did he

give Katherine permission to ride a motorcycle, nor did

he have personal knowledge of this accident or the events

leading to the accident until he was informed that

Katherine was injured and in the hospital. (Tr. at 399-400).

*

PROCEDURAL HISTORY

All three respondents filed a motion for summary

judgement based on the parental immunity doctrine,

which applies in Texas, to allegations of negligence in the

exercise of a parental role, and also on the basis that

plaintiff could not establish as a matter of law, that the

accident and injuries were proximately caused by any

conduct or omission of any of the three respondents.

The trial court granted the motions for summary

judgment. Thereafter, plaintiff severed these defendants

from the case, and appealed the trial court’s granting of

the summary judgments in the Court of Appeals, Ninth

District of Texas at Beaumont. The issues presented on

appeal were that (1) the conduct of the defendants did

not fall within the parameters of the parental immunity

doctrine, (2) there were material issues as to whether or

not defendants conduct was the proximate cause of the

accident, and (3) that the parental immunity doctrine

violated the Texas Constitution. Petitioners failed to state

any federal question, and, in fact, do not even cite to

either the Texas Constitution or the United States Consti-

tution in their brief. The question of state constitu-

tionality was raised in dicta and not as a main point of

error.

The Beaumont Court of Appeals upheld the granting

of the summary judgments for all three respondents on

both grounds, holding that their conduct was immune

from lawsuit because of the parental immunity doctrine,

and further, that plaintiffs could not establish proximate

cause as a matter of law. After Petitioners made a motion

for rehearing, which was denied without an opinion, an

Application for Writ of Error was filed in the Texas

Supreme Court which was also denied without opinion.

+

WAIVER OF CONSTITUTIONAL CLAIMS

The Petitioners have failed to perfect their Federal

Fourteenth Amendment arguments in the lower courts

and therefore cannot raise them for the first time in this

Court. 28 U.S.C. § 1257. See Responses in Opposition to

Motion for Summary Judgment of Respondents (Tr. Vol.

III, #29, pp. 34-36). In examining this document, the

Court will see that the Petitioners did not perfect the

federal constitutional argument. The Petitioners did not

address the Texas parental immunity doctrine’s federal

constitutionality. On appea!, the Petitioners tried to

stretch the rationale in Price v. Price, 732 S.W.2d 316 (Tex.

1987) (inter-spousal immunity eliminated in tort personal

injury actions), to encompass the parental immunity doc-

trine based upon Price’s use of the Texas Constitution, -

Article I, Section 3, not the United States Constitution.

(Tr. Vol. III, #29, p. 36). The Petitioners briefly mentioned

that the parental immunity doctrine was unconstitutional

on its face as applied in this case. The Petitioners, how-

ever, do not cite which constitution they seek to invoke or

what provisions of either may apply. Furthermore, there

are no constitutional cites specifically referred to in Peti-

tioners’ brief or table of authorities. The only clue as to

which constitution Petitioners seek to invoke is their cita-

tion to Lucas v. United States, 757 S.W.2d 687 (Tex. 1988),

in which the Texas Supreme Court answers a certified

question from the Fifth Circuit regarding the application

of the Texas Constitution to the statutory limitations on

medical malpractice damages. The mere citation of Lucas

does not invoke or perfect Petitioners’ arguments pre-

sented to this court. Webb v. Webb, 451 U.S. 493 (1981) is

illustrative of exactly the type of situation presented in

this case. In Webb, this Court stated:

This Court has frequently stated that when ‘the

highest state court has failed to pass upon a

federal question, it will be assumed that the

10

omission was due to want of proper presenta-

tion in the state courts, unless the aggrieved

party in this Court can affirmatively show the

contrary.’

Id. at 495.

Further, a vague assertion to a constitutional princi-

ple will not preserve a due process argument in the

Supreme Court. Bankers Life and Casualty Co. v. Crenshaw,

486 U.S. 71 (1988). A generic reference to the Fourteenth

Amendment is not sufficient to preserve a constitutional

claim based on an unidentified provision. Taylor v. Illinois,

484 U.S. 400 (1988).

Petitioners did address the Texas constitutional argu-

ment in their brief to the Appeals Court and it was

dismissed because the case authority that Petitioners

raised was that of other jurisdictions not controlling in

Texas. The Beaumont Court of Appeals held “[w]e con-

clude the question of constitutionality is no longer in

doubt.” Hall at 910. The court did not address any United

States Constitutional arguments as they where not prop-

erly raised by Petitioners. Furthermore, even the dissent

recognized that Petitioners’ argument was confined to the

application of the equal protection clause of the Texas

Constitution.

“Katherine argues that such a restriction (paren-

tal immunity) is prohibited by the equal protec-

tion clause of the Texas Constitution.”

Hall at 912.

Under Texas law “[i]ssues not expressly presented to

the trial court by written motion or response to the

11

motion for summary judgment cannot be considered on

appeal as grounds for reversal.” Hall at 908.

The law is clear as mandated by this Court that a

federal question must be properly presented and consid-

ered by a state court before this Court will have jurisdic-

tion to grant certiorari. Further, when the federal

constitution is not specifically mentioned in the state’s

opinion or the Petitioner’s brief, the court will con-

clusively presume that the state constitution was

intended. Osborne v. Clark, 204 U.S. 565 (1960). Addi-

tionally, merely the averment in a petition for writ of

error that a federal question was raised and decided in

the state court is insufficient in itself to give the court

jurisdiction. Id. at 565. The Court will not even consider a

petition for writ of certiorari where the Petitioner failed

to even reference a federal question in his brief to the

state. Gibbs v. Zimmerman, 290 U.S. 326 (1933); Chappell v.

Bradshaw, 128 U.S. 132 (1888).

The attempt of the Petitioners to raise a federal ques-

tion for the first time on rehearing, as in this case, is too

late. In Herndon v. Georgia, 295 U.S. 441 (1935), rehearing

denied, 296 U.S. 661 (1935), dismissing a writ on these

grounds, this Court held:

The long established general rule is that the

attempt to raise a federal question after judg-

ment upon a petition for rehearing comes too

late unless the court actually entertains the

question and then decides it. Id. at 443.

See also Chicago I and L.R. v. McGuire, 196 U.S. 128 (1904);

Jett Brothers v. Carrollton, 252 U.S. 1 (1919).

12

Furthermore, the court of appeal. denied the motion

for rehearing with no opinion as did the Texas Supreme

Court deny the application for writ of error. As held in

Stembridge v. State of Georgia, 343 U.S. 541 (1952):

Where the highest court delivers no opinion and

it appears that the judgment might have rested

upon a nonfederal ground, this court will not

take jurisdiction to review the judgment. Id. at

547.

Because Petitioners did not perfect their constitu-

tional argument under the United States Constitution,

this Court should deny certiorari to Petitioners.

+

PARENTAL IMMUNITY DOCTRINE

IS CONSTITUTIONAL

Should this Court decide that the Petitioners did

perfect their constitutional arguments and that the opin-

ion of Hall, supra did not rest on “adequate and indepen-

dent state grounds”, Respondents urge that the

Fourteenth Amendment arguments presented by Peti-

tioners should fail. Petitioners attempt to invoke the

United States Constitution’s protection under the Four-

teenth Amendment’s Equal Protection Clause and Due

Process Clause, which provide:

No state shall . . . deprive any person of life,

liberty, or property, without due process; nor

deny to any person within its jurisdiction the

equal protection of the laws. U.S. Const. amend.

XIV, Sec. 1.

13

STANDARD OF REVIEW FOR

CONSTITUTIONAL QUESTIONS

When a state’s laws are attacked on equal protection

grounds, the “state laws are generally entitled to a pre-

sumption of validity.” Parham v. Hughes, 441 U.S. 347, 351

(1979). Different levels of scrutiny are applied for equal

protection analysis depending upon the type of individ-

ual rights that are effected by the alleged discriminatory

classification. A three tier analysis is used when ruling

upon the equal protection claims under the Fourteenth

Amendment to the United States Constitution, depending

upon the rights and or classification under scrutiny. Plyler

v. Doe, 457 U.S. 202 (1982); Spring Branch I.S.D. v. Stamos,

695 S.W.2d 558 (Tex. 1985), appeal dismissed, 475 U.S. 1001

(1986). This analysis starts by examining the classification

created and determining whether this classification

infringes upon a fundamental right or interest or burdens

an inherently suspect class. Plyler.

Applying this analysis to the facts of this case, the

inquiry focuses upon whether an unemancipated minor

has a fundamental right to sue her parents for ordinary

negligence. In Lucas, Justice Gonzalez in his dissenting

opinion recognized that “the right accorded to a plaintiff

to sue in tort for an injury is not a fundamental right.”

Lucas at 695 (Gonzalez J. dissenting) (citing Sibley v. Board

of Sup’rs of Louisiana, 462 So.2d 149, 155, Opinion mod-

ified, 477 So.2d 1094 (La. 1985). The right to vote, the

rights guaranteed by the First Amendment, the right to

privacy, the right to procreate and the right to interstate

travel have been identified as “fundamental rights”. Mas-

sachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312

14

(1976) at FN3; Clark v. State of Texas, 665 S.W.2d 476 (Tex.

Cr. App. 1984).

Respondents assert that Petitioners are misleading

this Court in advancing their proposition that an une-

mancipated minor has a fundamental right to bring suit

against her parents. In a case cited by Petitioners, Moran

v. Beyer, 734 F.2d 1245, 1246 (7th Cir. 1984), the court held

that the right of a spouse to bring suit against the other

spouse is not a fundamental right. Id. Also, Petitioners

have incorrectly used as authority the case of White v.

State, 661 P.2d 1272 (Mont. 1983) in their assertion that the

right to bring a civil action for personal injuries is a

fundamental right. The court in White is interpreting the

Montana Constitution, not the United States Constitution.

Therefore, this case is inapplicable to our analysis. Fur-

ther, the Court has held that the right to bring a cause of

action in tort is not a fundamental right and the depriva-

tion of that right is not a violation of due process. Siegert

v. Gilley, 500 U.S. 226 (1991), rehearing denied, 111 S.Ct.

2290 (1991).

Because an unemancipated minor does not have a

“fundamental” right to sue her parents, the analysis turns

to whether the parental immunity doctrine as it now

exists in Texas creates a suspect classification. The paren-

tal immunity doctrine does not create a suspect class as it

neither infringes nor benefits a class of citizens based

upon race, gender, or religious affiliation. Plyler v. Doe,

457 U.S. 202 (1982). “ ‘Suspect’ classifications are only

those classifications which are likely to reflect deep

seated prejudice rather than legislative rationality in pur-

suit of a legitimate objective.” Cunningham v. Beavers, 858

F.2d 269, 273 (5th Cir. 1988) (Children are not a suspect

15

class). The classifications that occur through the imple-

mentation of the parental immunity doctrine do not cre-

ate invidious discrimination nor a suspect class.

Petitioners try to invoke an “intermediate” scrutiny

standard based upon the unsubstantia 2d assertion that

Katherine Singleton suffers from permanent brain impair-

ment. (Petition for Writ of Cert. at p.16). However, the

record does not contain any proof that Katherine Sin-

gleton suffered permanent brain injury, and Petitioners

have not at any time from the date of the accident on June

2, 1987 until the present ever sought to have Katherine

Singleton declared non-compos mentis. Therefore, since

there is no evidence before this Court as to Katherine

Singleton’s condition it would be improper to invoke the

intermediate scrutiny standard.

The “intermediate” scrutiny test should only be used

when the “classification, while not facially invidious,

nonetheless gives rise to recurring constitutional diffi-

culties” requiring a substantial state interest for the clas-

sification. Plyler at 217, citing, Craig v. Boren, 429 U.S. 190

(1976). (Intermediate substantial interest test used in lim-

ited circumstances based upon gender, legitimacy, or

alienage).

The Petitioners’ reliance upon Catlin v. Ambach, 644 F.

Supp. 161 (N.D. N.Y. 1986), is misplaced. Chief Judge

Munson in Catlin, used an intermediate standard because,

as he saw it, New York’s residence statute created a

subclass of children unable to enjoy tuition free public

education, a state created right. He also held that the

importance of receiving an education was the type of

classification that gave rise to recurring difficulties. Id. at

16

166. However, a state’s denial of a free education, a state

created right, based on the nonresidence of biological

parents of a handicapped minor, is clearly not analogous

to the state of Texas carving out exceptions to the com-

mon law development of the parent’ immunity doctrine.

The Petitioners’ reliance on Catlin is also inappropri-

ate because that court was dealing with residence

requirements related to a minor’s right to education. The

state of Texas has the right to exercise its independent

jurisdictional power in adopting the concept of parental

immunity. Further, the right to sue is fundamentally dif-

ferent from the state-created right to a public education.

The societal interest in universal education and having a

literate electorate does not compare with the social inter-

est of allowing all unemancipated minors the opportunity

to sue their parents for alleged negligence involving par-

ental discretion.

Since it is clear there is no suspect class or fundamen-

tal right involved in this case, the proper test for an equal

protection analysis is whether the classification is ratio-

nally related to a legitimate state interest. Parham v.

Hughes.

The Equal Protection Clause does not preclude

the state from resorting to classification, but

only requires that the classification be reason-

able, not arbitrary, and rest on some ground of

difference having a fair and substantial relation

to the object of the legislation so that all persons

similarly situated will be treated alike. Brown v.

State, 808 S.W.2d 628 (Tex. App. - Austin 1991,

writ denied) citing to Old Dearbourn Distributing

Co. v. Seagram-Distillers Corp., 299 U.S. 183, 197

(1936).

17

Further this Court has stated:

[E]ven if one characterizes the immunity

defense as a statutory deprivation, it would

remain true that the State’s interest in fashion-

ing its own rules of tort law is paramount to any

discernible federal interest, except perhaps an

interest in protecting the individual citizen from

state action that is wholly arbitrary or irrational.

Martinez v. California, 444 U.S. 277, 282 (1980)

(upholding tort immunity for parole official).

Likewise, this Court in Ferri v. Ackerman, 444 U.S.

193, 198 (1979), recognized that “when state law creates a

cause of action, the State is free to define the defenses to

that claim, including the defense of immunity, unless, of

course the state rule is in conflict with federal law.” This

Court based the foregoing upon Art. VI, cl. 2 of the

United States Constitution.

“Parental immunity is the law in Texas.” Hall at 908.

The state of Texas has a legitimate state interest in pre-

venting judicial interference with parental discretion.

This is because the integrity of the family unit is a vital

and important institution in American society and has

protection under the Due Process Clause of the Four-

teenth Amendment, the Equal Protection Clause of the

Fourteenth Amendment, and the Ninth Amendment of

the United States Constitution. See, In the Interest of G.M.,

596 S.W.2d 846 (Tex. 1980); Stanley v. Illinois, 405 U.S. 645,

92 S.Ct. 1208, 31 L.Ed. 2d 551 (1972). The Texas Supreme

Court recently characterized the purpose of the parental

immunity doctrine as follows:

The real objective of parental immunity .. . is

not to promote family harmony; rather, it is

18

simply to avoid undue judicial interference with

parental discretion. The discharge of parental

responsibilities, such as the provision of a home,

food, and schooling, entails countless matters of

personal private choice. In the absence of cul-

pability beyond ordinary negligence, those

choices are not subject to review in court.

Shoemake v. Fogel, Ltd., 826 S.W.2d 933, 936 (Tex.

1992).

The Texas parental immunity doctrine, as it presently

exists, sets forth exceptions for intentional torts, the oper-

ation of motor vehicle by a parent, and business activities

of a parent. See Aboussie v. Aboussie, 207 S.W.2d 636 (Tex.

Civ. App. — Fort Worth 1954, writ ref’d); Felderhoff v.

Felderhoff, 473 S.W.2d 928 (Tex. 1971); Jilani By and Through

Jilani v. Jilanit, 767 S.W.2d 671 (Tex. 1988). These excep-

tions provide ample opportunity for unemancipated

minor children to seek redress for the injuries prox-

imately caused by their parents in certain situations. The

protection afforded by the Texas parental immunity doc-

trine for a parent’s mere negligence in exercising reason-

able parental discretion, supervision and judgment is

rationally related to the states valid reluctance to second

guess parent’s management of purely family matters.

Raising a child is a delicate and unique function for

the family, with reciprocal commitments that are not pre-

sent between a child and a stranger. “Principles of free-

dom and democracy are closely interwoven with

preserving the integrity of family decision making.”

Brunner v. Brunner, 770 F. Supp. 517, 523 (W.D. S. Dakota

1991). Also see e.g., Wisconsin v. Yoder, 406 U.S. 205 (1972);

Pierce v. Society of Sisters, 268 U.S. 510 (1925).

19

Indeed, this Court has recognized that a parent’s

right to companionship, care, custody and management

of his or her children is an important interest that war-

rants deference and absent a powerful countervailing

interest, protection. Lassiter v. Department of Social Services

of Durham Co., 452 U.S. 18 (1981), rehearing denied, 453 U.S.

927 (1981). Additionally, the custody, care and nurturing

of a child resides first in the parents, whose function and

freedom include the preparation for obligation for which

the state can neither supply nor hinder. Ginsberg v. New

York, 390 U.S. 629 (1968). Personal decisions regarding

child rearing have been recognized as protected liberties

under the Fourteenth Amendment’s Due Process Clause.

Planned Parenthood of Southeastern Pennsylvania v. Casey,

112 S.Ct. 2791,120 L.Ed.2d 674, 60 U.S.L.W. 4795 (1992).

The New York Court of Appeals probably articulated

the best reason for a court’s hesitance to venture into the

area of parental discretion regarding the raising of chil-

dren. In Holodook v. Spencer, 324 N.E.2d 338, 343 (N.Y.

1974), the court looked at the adverse impact that judicial

intrusion would have on the “fundamental family rela-

tion between parent and child.” The Holodook court

stated:

We can conceive of few, if any, accidental inju-

ries to children which could not have been pre-

vented, or substantially mitigated, by keener

parental guidance, broader foresight, closer pro-

tection and better example. Indeed, a child

could probably avoid most physical harm were

he under his parents’ constant surveillance and

instruction, though detriment more subtle and

perhaps more harmful then physical injury

might result. Id. at 343.

20

After the doctrine of parental immunity was recog-

nized in Hewellette v. George, 68 Miss. 703, 9 So. 885 (1891),

forty-two other states adopted some form of parental

immunity. Hollister, Parent Child Immunity: A Doctrine In

Search of Justification, 50 Fordham L.Rev. 489, 494

(1981-82). There are many legitimate policy reasons pro-

viding the basis for parental immunity which include 1)

the disruption of domestic tranquility, 2) the threat to

parental discipline and control, 3) the proliferation of

fraudulent and conclusive suits, and 4) the depletion of

family resources. Begley v. Kohl and Madden Printing Ink,

Co., 157 Conn. 445; 254 A.2d 907 (1969); Barlow v. Iblings,

261 lowa 713; 156 N.W.2d 105 (1968); Skinner v. Whitley,

281 N.C. 476; 189 S.E.2d 230 (1972); Orefice v. Albert, 237

So.2d 142 (Fla. 1970).

The Texas parental immunity doctrine is rationally

related to a legitimate state interest so that the courts will

not intrude into the realm uniquely within a family, while

allowing judicial recourse when an accident occurs out-

side this realm. See, Aboussie, Felderhoff and Jilani. In Shoe

make at 936, the Texas Supreme Court considered the

issue of parental immunity and whether this theory of

law bars a contribution claim in a case where allegations

against the parent for negligent supervision and educa-

tion of the child have been plead. In Shoemake, the mother

of a two-year old infant filed suit for wrongful death and

also as a representative of the child’s estate in the sur-

vival action against an apartment complex owner under

premises liability theories for the drowning of the child.

The defendants in this case filed a claim for contribution

against the mother in the survival action which was disal-

lowed by the trial court. The Court of Appeals held that

21

the damages of the child’s estate should be reduced by

the percentage of fault assigned to the mother under

comparative causation. Fogel Ltd. A.T. v. Shoemake, 795

S.W.2d 903, 908 (Tex. App. Ft. Worth 1990, rev’d on

other grounds).

In Shoemake, the Court recognized that a defendant

lacked a claim for contribution unless the child had a

claim against the mother for negligence. The Court

reviewed the exceptions to parental immunity and held

them inapplicable. This Court recognized that the doc-

trine of parental immunity applied to “alleged acts of

ordinary negligence which involve a reasonable exercise

of parental authority or the exercise of ordinary parental

discretion with respect to provisions for the care and

necessities of the child.” Shoemake at 936. The Court fur-

ther held that since the allegations against the mother

were for negligence in the management, supervision and

control of the child, the defendant’s claims for contribu-

tion were barred as a matter of law by the parental

immunity doctrine.

Just as in the Shoemake case, the Petitioners’ allega-

tions are for negligence in the management, supervision

and control of the child and therefore are barred as a

matter of law by the parental immunity doctrine.

“A child has no cause of action against a parent for

injuries arising out of deficient supervision”. Fogel at 906.

The Fogel court recognized the continued validity of the

parental immunity doctrine with the limited exceptions

as recognized by the Texas Supreme Court.

The trial court’s granting of Respondents’ summary

judgments and the appellate courts affirmance of same is

rationally related to the reluctance of the courts to get

22

involved in parental supervision as it allows the court to

examine the factual allegations surrounding an accident.

If a parent's actions fall, as in this case, within the sphere

of parental discretion and control, it is in the state’s

legitimate interest not to interfere. This is not an arbitrary

decision, but a rational decision based upon the unique-

ness of a parent/child relationship

DUE PROCESS/OPEN COURTS DOCTRINE

Petitioners allege that their right to redress has been

impaired by the parental immunity doctrine. Respon-

dents contend that Petitioners’ right of access to the court

and due process rights have not been violated by the

parental immunity doctrine.

The Fourteenth Amendment to the United States

Constitution provides that no state shall deprive any

person of life, liberty or property without due process of

law. U.S. Const. Amend. XIV § 1. Similarly, the Texas

Constitution provides that no citizen shall be deprived of

life, liberty, property, privileges or immunities except by

due course of law. Tex. Const. Art. IL § 19.

The Texas Constitution also provides that “all Courts

shall be open, and every person for injury done him, in

his land, goods, person or repudiation, shall have remedy

by due course of law”. Tex. Const. Art. I, § 13. The open

Court’s provision is a facet of Texas due process. Sax v.

Votteler, 648 S.W.2d 661 (Tex. 1983). Texas Constitution

Article I, § 13 ensures that Texas citizens bringing com-

mon law causes of action will not unreasonably be denied

23

the right to redress of injury. Hanks v. City of Port Arthur,

48 S.W.2d 944 (Tex. 1932).

In analyzing Petitioners’ right to redress, the Texas

courts examine two criteria: (a) whether the litigant has a

cognizable common law cause of action that is being

restricted; and (b) the reasonableness and extent of the

restriction. Sax, at 666. Texas courts have long recognized

common law causes of action entitling one to sue for

injuries negligently inflicted by others. Houston and Great

Northern Railroad Co. v. Miller, 51 Tex. 270 (1879). Peti-

tioners’ right to sue and be heard has not been impaired.

Petitioners have been heard at all levels of Texas courts.

The second criteria that should be examined is the

effect of the immunity on the litigant’s right to bring his

or her cause of action. Sax, at 666. This restriction must be

weighed against the purpose of the parental immunity

doctrine which was clearly annunciated in Shoemake.

The wisdom of the underlying policy determination

regarding the Texas parental immunity doctrine is best

determined by the State of Texas. As such there is no

merit in Petitioner’s contention that the parental immu-

nity doctrine is unconstitutional when applied to defeat a

tort claim arising under state law. Martinez v. California,

444 U.S. 277 (1981).

Finally, Petitioners still have valid and ongoing

causes of action against the owner and operator of the

motorcycle (Hicks) as well as the County of Montgomery,

Texas. (See, Petition for Writ of Certiorari p. 6). The Peti-

tioners have a right of redress.

24

Petitioners also advance the novel notion that a par-

ent’s death of natural causes, which are wholly unrelated

to the tort on which the child’s action is based, somehow

eliminates the protection of the parental immunity doc-

trine. First of all, William Singleton passed away after this

appeal was perfected. There is no evidence in the record

regarding this fact, nor did the appeals court allow the

plaintiff to supplement the record with the death certifi-

cate after the judgment was rendered. Therefore, the

record does not support this argument. However, even if

the death of respondent William Singleton, III had

occurred prior to summary judgment, Petitioners’ case

law is still not applicable.

In Sneed by McCullough v. Sneed, 705 S.W.2d 392 (Tex.

App. - San Antonio 1986, writ ref’d n.re.), a minor was

allowed to proceed against her deceased father’s estate

for injuries sustained in a plane crash. The suit was not

allowed because her father’s death extinguished parental

immunity; rather, the court held that the father’s conduct

was “not referable to his parental responsibilities to

plaintiff.” Id. at 397. As to the father’s death, the court

stated there would be no disruption of a family relation-

ship “which terminated at the time that plaintiff’s action

under the wrongful death statute accrued.” Id. (emphasis

added). Further, this court has specifically disapproved

Sneed. Shoemake at 973 n.3. Here, respondent William Sin-

gleton, III was alive, and maintained a family relationship

with Petitioner Katherine Singleton at the time her

alleged cause of action accrued. Therefore, parental

immunity would apply.

Additionally, Petitioners argue that William Sin-

gleton, III lost the protection of the parental immunity

:

:

25

doctrine following his divorce to respondent, Jimmie

Lynn Martin. Jimmie Lynn Martin is Katherine Sin-

gleton’s natural mother and William Singleton, III was

her natural father. Following their divorce, William Sin-

gleton, III was named possessory conservator. William

Singleton, III did not cease being a parent to Katherine

Singleton; he merely ended his legal relationship with her

mother. To adopt Petitioners’ argument would create

serious repercussions in Texas family law.

Petitioners attempt to make the argument that the doc-

trine of parental immunity does not apply to William Sin-

gleton, III because he was not the custodial parent at the time

of the accident. Petitioners cite two cases for that proposi-

tion. Both cases are mis-characterized.

Bondurant v. Bondurant, 386 So.2d 705 (La. App. 1980), a

mother brought suit on behalf of her children against her

former husband for injuries sustained to her minor children

in an automobile accident caused by her former husband.

Louisiana statutorily confines parental immunity to torts

committed by parents during marriage or by the custodial

parent following separation and divorce. Id. at 706-07. Texas

has no such prohibition. Bondurant is not applicable since

that same conduct has been recognized in Jilani as an excep-

tion to the doctrine of parental immunity. Jilani at 672-73. The

case at bar has nothing to do with injuries sustained in an

automobile accident in which William Singleton, III was

driving.

In addition, Petitioners cite Fugate v. Fugate, 582

S.W.2d 663 (Mo. 1979) for the same proposition. Likewise,

the case is not applicable. That case involved a cause of

action against a father by a child for the wrongful death

of her mother. Id. Again, this is out of the scope of the

doctrine of parental immunity and totally inapplicable to

26

the facts of this case where a child is suing for personal

injuries to herself.

Texas has never barred a non-custodial parent from

claiming immunity. In addition, all acts alleged against

William Singleton, III fit squarely within a parental role

as recognized by this Court. Jilani at 672-673; Felderhoff at

932-933. This court must give deference to the State of

Texas in its interpretation and application of the parental

immunity doctrine. Radio Station WOW v. Johnson, 326

U.S. 120 (1945).

Additionally, the Petitioners advance the argument

that Brent Martin should not be protected by the parental

immunity doctrine because he is a step-parent. In contra-

diction to Petitioners’ Petition for a Writ of Certiorari,

footnote number 2 on page 22, Brent Martin would show

this Court that he is alive and well and living in Conroe,

Texas.

Petitioners’ argument that a step-parent should not

be afforded parental immunity is flawed and misleading

to the Court. Brent Martin, as a step-parent is entitled to

the same immunities as a natural parent. Brent Martin, as

the step-parent of Katherine Singleton, stands in loco par-

entis because he voluntarily assumed the care and sup-

port of his step-child, Katherine Singleton. (Tr. at

399-400).

If a husband of a wife receives into his home the

wife’s child by a former husband, and holds it out to the

world as a member of his family, the husband stands to

the child in loco parentis. Boyle v. Tully, 134 S.W.2d 500,

(Tex. Civ. App. - Galveston 1939, writ ref’d.); Drescher v.

Morgan, 251 S.W.2d 173 (Tex. Civ. App. — Fort Worth 1952,

27

writ ref’d n.re.). A step-parent standing in loco parentis

may exercise the control and authority of a parent. Gor-

man v. State, 42 Tex. 221 (1875). Hall at 905.

In Franks v. Franks, 138 S.W. 1110 (Tex. Civ. App. -

Austin 1911, no writ), the court discussed the relationship

between a step-father and a step-child. If a step-parent

voluntarily assumes the care and support of a step-child,

he stands in loco parentis, and the presumption is that they

deal with each other as parent and child. Id. at 1110. Ina

step-parent/step-child relationship where a step-parent

voluntarily assumes the care and support of the step-

child, the ordinary rules of parent and child will be held

to apply. Id. at 1110.

Brent Martin’s actions of receiving Katherine Sin-

gleton into his home and assuming for her care caused

him to stand to Katherine Singleton in loco parentis. The

relationship between Brent Martin and Katherine Sin-

gleton is that of parent and child, and the ordinary rules

of parent and child will be held to apply. See Franks v.

Franks; Boyle v. Tully; Drescher v. Morgan; and Hall v.

Martin.

Many jurisdictions, both State and Federal, have

ruled that the parental immunity doctrine protects a step-

parent. See Gunn v. Rollings, 157 S.E.2d 590 (1967); London

Guarantee & Accident Co., Ltd. v. Smith, 68 N.W.2d 781

(1954); DeLay v. DeLay, 337 P. 2d 1057 (1959); Van Wart v.

Cook, 557 P.2d 1161 (1976); Rosenberg v. Silver, 762 F.2d 255

(1985); Trudell v. Leatherby, 212 Cal. 678, 300 P. 7 (1931).

Other jurisdictions have recognized that parental immu-

nity extends to step-parents, but refused to apply the

doctrine because of excessive assaultive conduct. Wilson

28

v. Wilson, 742 F.2d 1004 (1984); Gillett v. Gillett, 335 P. 2d

736 (1959). The parental immunity doctrine protects a

variety of relationships that exist with a child provided

the individual stands in loco parentis. The parental immu-

nity doctrine has even been extended to foster parents,

grandparents, and uncles that were shown to be standing

in loco parentis. See Mathis v. Ammons, 453 F. Supp. 1033

(E.D. Tenn. 1978). Newsome v. Department of Human

Resources, 199 Ga. App. 419, 405 S.E.2d 61 (Ga. App.

1991); Bennett v. Bennett, 194 Ga. App. 197, 390 S.E.2d 276

(Ga.App. 1990); Lawber v. Doil, 547 N.E.2d 752, (Ill. App.

4. Dist., 1989); Thelen v. Thelen, 435 N.W.2d 495

(Mich.App. 1989).

CONCLUSION

The Court does not have jurisdiction to grant Peti-

tioners’ writ because of the present, adequate, and inde-

pendent state grounds to uphold the judgement.

Secondly, the Petitioners have waived any federal consti-

tutional issues by the failure to properly and timely pre-

sent these issues to the state court below, nor is it evident

from the record that either the Texas Supreme Court or

the Court of Appeals in Beaumont ever considered a

federal question in the consideration of this case. There-

fore, the writ should be dismissed, or in the alternative,

denied.

Lastly, even if the Petitioners had properly raised and

preserved a federal question under the Fourteenth

Amendment, the parental immunity doctrine as it exists

in Texas withstands constitutional scrutiny, as it does not

sm

29

affect a suspect class, nor does it infringe a fundamental

right. The sovereignty of Texas should be respected in

allowing the state to develop and interpret its own doc-

trines of civil law. Therefore, the court should deny writ.

Respectfully submitted,

CHALKER, Bair & Associates, P.C.

AMANDA S. Hitty

TBN: 09683030

WILTON F. CHALKER

TBN: 04059600

55 Waugh Drive, Suite 500

Houston, Texas 77007

Telephone: (713) 862-5599

Facsimile: (713) 868-9444

Attorney for Respondent,

Jimmie Lynn Martin

Wetzet & HERRON

Cut WILLIAMSON

2170 Buckthorne Place Suite 300

The Woodlands, Texas 77380

Telephone: (713) 363-5050

Facsimile: (713) 363-0077

Attorney for Respondent,

William Singleton, III

WHITTINGTON, PFEIFFER AND VACEK

JAMes S. HILeE

2600 South Gessner, Suite 600

Houston, Texas 77063

Telephone: (713) 789-8850

Facsimile: (713) 789-0033

Attorney for Respondent,

Brent Martin