Opposition Brief — Parkhill v. Aduddell

wr “.~ 0 OR) Utama lor ac re

Bupreme Court, U.S,

, ¢7, FILED

No. 91-1790 JUN 2 1992

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1991

.

WELDON PARKHILL, HENRY B. PARKHILL,

DAVID C. COWDEN, JOHN B. RUNGE, INDIVIDUALLY

and d/b/a PARKHILL, COWDEN &

RUNGE, A General Partnership, JOHN VAUGHAN,

PARKHILL, PARKHILL, COWDEN & RUNGE,

A Professional Corporation and PARKHILL &

PARKHILL, A General Partnership,

Petitioners,

VS.

EDWIN I. ADUDDELL,

Respondent.

¢

Petition For Writ Of Certiorari

To The Texas Supreme Court

¢

RESPONDENT'S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

¢

Davip W. TowNEND

Counsel of Record

BROWN, BRowNn, CHANDLER & TOWNEND

P. O. Box 472286

Garland, Texas 75047-2286

214/271-4561

214/278-3588 (Fax)

Attorneys for Respondent

Edwin I. Aduddell

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

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED FOR REVIEW RESTATED

Does the retroactive application of a state supreme

court decision violate the due process clause of the Four-

teenth Amendment, when the decision vitiates a previ-

ously vested statute of limitations defense, and revives a

defendant’s liability for punitive damages?

Is the due process clause of the Fourteenth Amend-

ment violated when a defendant is retroactively subjected

to liability for punitive damages?

REPLY: This Court lacks jurisdiction to review and issue

an advisory opinion in this case since there is no final

jus gment awarding any damages; the questions involve

pur ‘y a matter of state procedural law; Petitioners have

failed to properly present these points in the state courts

and have waived them; and this case does not involve the

retroactive application of a statute of limitation defense

destroying vested rights, but rather the application of a

century old principle of tolling of statute of limitations.

ii

TABLE OF CONTENTS

Page

Questions Presented for Review Restated .......... i

Fain oh CeO a seh i a ee ee ee ii

‘Tees OF AsmIIIOE 6c < 60550 iacese ei ee iii

Opinions DalOW o25ccccencdccwenhewaunos hekaaeneans |

Sur beet. «5 3.0 6ccdde deen tae eee 2

Cocutitutional Feawiehee is i iicds casaesekia tes dars 2

Statement of Gee COO «6566kse Venn cnteeeeeeeees 2

Reasons for Denying the Writ ..................... 4

Cosweiat . ous ccckueeeute eee q

ili

TABLE OF AUTHORITIES

Page(s)

Cases

Anonymous Numbers 6 and 7 v. Baker, 360 U.S. 287,

7 eee tone, 72 S. Ct. 1157 (1959)............... 4

Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71,

108 S. Ct. 1645, 100 L.Ed.2d 62 (1988)............ 5, 8

Browning-Ferris Industries, Inc. v. Kelco Disposal,

Inc., 492 U.S. 257, 106 L.Ed.2d 219, 109 S. Ct.

TS Ty Tere er eee eer eee eee 5, 8

Bruce v. Tobin, S.D. 245 U.S. 18, 38 S. Ct. 7 (1917) ..... 4

Caldwell v. Mississippi, 472 U.S. 320 (1985)............ 5

Fuller v. Oregon, 417 U.S. 40, 94 S. Ct. 2116, 40

6 neo akhes cers evksenseneneee rsd 5

Henry v. Mississippi, 379 U.S. 443 (1965).............. 5

Michigan v. Tyler, 436 U.S. 499, 98 S. Ct. 1942, 56

i i sas ess che¥ecsecdnos cha cecia reas 4

Monks v. N.J., 398 U.S. 71, 90 S. Ct. 1563, 26

OE | Geer rere rr ee eee eer 4

Murdock v. Memphis, 87 U.S. 590 (1875)............... 5

O'Dell v. Espinoza, 456 U.S. 430, 102 S. Ct. 1865, 72

OS Eee er Tr eer eer eee eee 4

Pacific Mutual Life Insurance Co. v. Haslip, __ U.S.

ee MW COON cis voceunssncecesae 9

Pickering v. Board of Education of Township H.S.

District No. 205 Will County, Illinois, 391 U.S.

563, 88 S. Ct. 1731, 20 L.Ed.2d 811 (1968)........ 4,5

Rescue Army v. Municipal Court, 331 U.S. 549 (1947) ..... 5

iv

TABLE OF AUTHORITIES - Continued

Page(s)

Zacchini v. Scripps Howard Broadcasting Co., 433

a Bie Te Fi ee nh at lv acesaannased 4, 8

Kimball v. Florida Bar, 465 F. Supp. 925 (D.C. Fla.

gig og Fg | eee rere 4

Aduddell v. Parkhill, 821 S.W.2d 158 (Tex. 1991)....... 5

Bender v. Crawford, 33 Tex. 745 (1870) .............-.-6

Borderlon v. Peck, 661 S.W.2d 907 (Tex. 1983).......... 7

Dallas v. Etheridge, 253 S.W.2d 640 (Tex. 1952)........ 6

Hughes v. Mahaney, 821 S.W.2d 154 (Tex. 1991)...1, 3, 5

Maloney v. Roberts, 32 Tex. 136 (Tex. 1869)............ 6

Mellanger v. Mayor of Houston, 3 S.W. 249 (Tex.

SE Dy 9 0ctice aes pan ehh dacekmernatee waste aek ek ¥werek 7

Wilson v. Work, 62 S.W.2d 490 (Tex. 1933) ............ 7

Amarillo Independent School District v. Brockmeyer,

292 S.W.2d 886 (Tex. App. - Amarillo 1956)........ 6

Crawford v. Adams, 213 S.W.2d 721 (Tex. App. 1948,

og Te eae i nap reie ene are pet nha ee oe 6

Deitz v. Vaughn, 423 S.W.2d 113 (Tex. App. — Waco

oe og Bg 8 FE ee ree rere 6

Fields v. Austin, 30 S.W. 386 (Tex. App. 1885, writ

Fe iene hh cee bak we kw cea hen week ateewer nea 6

McClung v. Johnson, 620 S.W.2d 644 (Tex. App. -

Se Ae Ue Oe Me io cca oeeneaceccnke ws cnbas 7

Vv

TABLE OF AUTHORITIES - Continued

Page(s)

Sowders v. M. W. Kellogg Co., 663 S.W.2d 644 (Tex.

App. — Houston 1983, writ ref’d n.re.)............. 6

Travis County v. Matthews, 235 S.W.2d 691 (Tex.

App. 1550, weit CEE REO). 6 060 ciscccinessvveance 6

Twyman v. Twyman, 790 S.W.2d 819 (Tex. App. -

Austin 1990) writ granted 34 Tex. Sup. Ct. J.173..... 7

Walker v. Haras, 570 S.W.2d 534 (Tex. App. -

Corpus Christi 1978, writ ref’d n.re.).............. 6

STATUTES, RULES, ETC.

Tam. Bat. Com. Cote 8 741s 6 ccsavcscsecescsstsaeees 3

12 Tex. Jur. Ill, “Constitutional Law,” § 181 nn

SOG, & Be so ccanatSccaceekss ieee eee 7, 8,9

50 Tex. Jur. Ill, “Limitation of Actions,” § 119-123..... 6

50 Tex. Jur. III, “Limitation of Actions,” § 164, pp.

GM 6 os vs 60 5nb0eesaeae cap aeneeeesaeeceue testa. 6

6 USCA. $1. eee 2

No. 91-1790

o

In The

Supreme Court of the United States

October Term, 1991

*

WELDON PARKHILL, HENRY B. PARKHILL,

DAVID C. COWDEN, JOHN B. RUNGE, INDIVIDUALLY

and d/b/a PARKHILL, COWDEN &

RUNGE, A general Partnership, JOHN VAUGHAN,

PARKHILL, PARKHILL, COWDEN & RUNGE,

A Professional Corporation and PARKHILL &

PARKHILL, A General Partnership,

Petitioners,

vs.

EDWIN I. ADUDDELL,

Respondent.

¢

Petition For Writ Of Certiorari

To The Texas Supreme Court

¢

RESPONDENT’S BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

¢

OPINIONS BELOW

Respondent disagrees that Hughes v. Mahaney, 35 S.

Ct. J. 157 (Tex. 1991) (see Appendix B to Petition for Writ of

Certiorari) adopted a new rule of law, but rather applied

a century old principle of tolling of limitations in legal

malpractice actions.

JURISDICTION

With respect, this Court lacks jurisdiction under 28

U.S.C.A. § 1257(3). Although the form of the Petition

claims infringement of constitutional rights, the sub-

stance of this case involves a nonfinal judgment wherein

the Texas Supreme Court applied a principle of tolling,

rooted in the jurisprudence of Texas for over a century, to

a statute of limitations defense in legal malpractice

actions. This is purely a matter of state procedural law

and does not present a federal question. Petitioners

waived any constitutional claims since they were not

timely presented to the state courts of Texas, there is no

final judgment awarding any damages as the case merely

reversed and remanded the granting of a summary judg-

ment, and this Court cannot render an advisory opinion.

4

CONSTITUTIONAL PROVISIONS INVOLVED

Respondent understands Petitioners are invoking the

due process clause of the 14th Amendment to the United

States Constitution, but Respondent strenuously dis-

agrees that any constitutional questions are applicable in

the instant case. (See jurisdictional arguments above.)

¢

STATEMENT OF THE CASE

There are many factual inaccuracies in Petitioners’

summary of the statement of the case. For example, in

addition to filing a lawsuit against his attorneys for negli-

gently failing to timely file the asbestosis claim which

resulted in it being barred by the statute of limitations,

Respondent alleged many other causes of action based on

their errors in mishandling his case based upon negli-

gence, gross negligence, breach of warranty and the Texas

Deceptive Trade Practices Act, § 17.41 et seq. for Tex. Bus.

& Com. Code. The trial court did not rule that Respon-

dent had waived the discovery rule, but merely granted a

summary judgment based upon one or more of the

grounds raised in the Petitioners’ motion. To the contrary,

Respondent had asserted the discovery rule in a lengthy

response which was filed. Respondent also takes issue

with the notion that the Supreme Court adopted a “new

rule tolling limitations” when it decided Hughes v.

Mahaney, supra, which relied upon case law embedded in

Texas law for over a century under which the statute of

limitations is tolled pending legal proceedings. The Texas

Supreme Court merely extended a well settled tolling

principle to legal malpractice actions so that where a legal

malpractice lawsuit arises out of the handling or mis-

handling of litigation, limitations will be tolled during

the pendency of that lawsuit. Respondent would also

point out that Petitioners first raised constitutional

grounds in a motion for rehearing filed in the Texas

Supreme Court, and have failed to properly present these

issues to the Texas courts and have therefore waived

them.

REASONS FOR DENYING THE WRIT

THIS COURT LACKS JURISDICTION TO REVIEW A

NON-FINAL JUDGMENT WHERE THE CONSTITU-

TIONAL QUESTION HAS NOT BEEN ADDRESSED

BY THE COURT OF LAST RESORT.

This Honorable Court cannot render advisory opin-

ions, Zacchini v. Scripps Howard Broadcasting Co., 433 U.S.

562, 97 S. Ct. 247 (1977), nor review the constitutionality

of a state law that has not been addressed by the state

court of last resort. Anonymous Numbers 6 and 7 v. Baker,

360 U.S. 287, 3 L.Ed.2d 1234, 79 S. Ct. 1157 (1959); Accord,

Kimball v. Florida Bar, 465 F. Supp. 925 (D.C. Fla. 1979)

aff'd 632 F.2d 1283. The Texas Supreme Court merely

remanded for new trial, there has been no award and this

is not a reviewable final judgment. Bruce v. Tobin, S.D. 245

U.S. 18, 38 S. Ct. 7 (1917); O’Dell v. Espinoza, 456 U.S. 430,

102 S. Ct. 1865, 72 L.Ed.2d 237 (1982).

PETITIONERS FAILED TO PRESENT THE FEDERAL

QUESTIONS IN CONFORMANCE WITH STATE PRO-

CEDURES AND HAVE WAIVED THE POINTS.

Petitioners first raised the constitutional points in the

Texas Supreme Court in a motion for rehearing. Although

the Texas Supreme Court denied the petition for rehear-

ing, the Texas courts have not had an opportunity to

address this nonmeritorious point. A failure to present a

federal question in conformance with state procedures

justifies a denial of the writ. Michigan v. Tyler, 436 U.S.

499, 98 S. Ct. 1942, 56 L.Ed.2d 486 (1978). This Court

properly denies a writ where the state court has had no

opportunity to pass upon the questions. Monk v. N.J., 90

S. Ct. 1563, 398 U.S. 71, 26 L.Ed.2d 54 (1970); Pickering v.

Board of Education of Township H.S. District No. 205 Will

County, Illinois, 391 U.S. 563, 88 S. Ct. 1731, 20 L.Ed.2d 811

(1968). (A constitutional claim of due process raised for

the first time in the Supreme Court is too late.) Fuller v.

Oregon, 417 U.S. 40, 94 S. Ct. 2116, 40 L.Ed.2d 642 (1974).

This Court has rejected a due process challenge to a

punitive damage claim which was not, as in the instant

case, raised either in the trial court or in the Court of

Appeals. Browning-Ferris Industries, Inc. v. Kelco Disposal,

Inc., 492 U.S. 257, 106 L.Ed.2d 219, 109 S. Ct. 2909 (1989);

accord, Bankers Life & Casualty Co. v. Crenshaw, 486 U.S. 71,

108 S. Ct. 1645, 100 L.Ed.2d 62 (1988).

THIS COURT WILL NOT REVIEW A STATE

COURT DECISION RESTING ON ADEQUATE

AND INDEPENDENT STATE PROCEDURAL

GROUNDS THAT DOES NOT INFRINGE

UPON CONSTITUTIONAL RIGHTS.

This Court will not review a state court decision

resting on adequate and independent state grounds, Mur-

dock v. Memphis, 87 U.S. 590 (1875); Caldwell v. Mississippi,

472 U.S. 320 (1985); and has no jurisdiction to review a

state court’s interpretation of state law so long as it does

not intrude upon federal law. Rescue Army v. Municipal

Court, 331 U.S. 549 (1947). Nor will this Court review

state procedural questions that do not infringe upon con-

stitutional rights. Henry v. Mississippi, 379 U.S. 443 (1965).

The instant case does not involve any constitutional ques-

tions, but merely an interpretation of state procedural

law. The rule of law announced by the Texas Supreme

Court, involves the application of well settled tolling

principles to the limitations defenses in malpractice

actions. In Hughes v. Mahaney and in Aduddell v. Parkhill,

the Texas Supreme Court cited century old case law,

Fields v. Austin, 30 S.W. 386 (Tex. App. 1885, writ ref’d)

and Walker v. Haras, 570 S.W.2d 534 (Tex. App. - Corpus

Christi 1978, writ ref’d n.r.e.).

Statutes of limitations have reference to the remedy

and do not confer a vested right. Travis County v. Mat-

thews, 235 S.W.2d 691 (Tex. App. 1950, writ ref’d n.r.e.);

Amarillo Independent School District v. Brockmeyer, 292

S.W.2d 886 (Tex. App. - Amarillo 1956); Dallas v.

Etheridge, 253 S.W.2d 640 (Tex. 1952); Sowders v. M. W.

Kellogg Co., 663 S.W.2d 644 (Tex. App. - Houston 1983,

writ ref’d n.r.e.). That a statute of limitation defense may

not be available does not raise constitutional questions.

For example, a statute of limitation defense may be

waived if not raised. See 50 Tex. Jur. III, “Limitation of

Actions,” § 164, pp. 633-635. Legislation that suspends

limitations have been upheld against various constitu-

tional attacks, including ex post facto effect. See Bender v.

Crawford, 33 Tex. 745 (1870). Limitations were successfully

suspended during time of war, Maloney v. Roberts, 32 Tex.

136 (Tex. 1869), and a federal statute tolling limitations

during periods of military service have been upheld.

Crawford v. Adams, 213 S.W.2d 721 (Tex. App. 1948, writ

ref’d n.r.e.) There are legislative tolling provisions which

have been upheld including a statute tolling limitations

against a person while outside the state, Deitz v. Vaughn,

423 S.W.2d 113 (Tex. App. - Waco 1967) aff’d 430 S.W.2d

47; and statutes tolling limitations during a period of

disability of incapacity, for persons while serving in the

armed forces or during a period of minority. See 50 Tex.

Jur. III, “Limitations of Actions,” §§ 119-123. The courts

have also recognized nonstatutory tolling provisions such

a eT

as fraudulent concealment, Borderlon v. Peck, 661 S.W.2d

907 (Tex. 1983) and the concept of a continuing tort.

Twyman v. Twyman, 790 S.W.2d 819 (Tex. App. - Austin

1990) writ granted 34 Tex. Sup. Ct. J. 173.

There are some Texas cases that hold the legislature

may not enact laws to apply retroactively to impair

vested rights. In Mellanger v. Mayor of Houston, 3 S.W. 249

(Tex. 1887), the court held the legislature could not enact

new legislation to allow the collection of taxes after the

limitation period had run. Wilson v. Work, 62 S.W.2d 490

(Tex. 1933), held that new legislation could not be applied

retroactively to destroy a vested right. These cases are

inapplicable for the instant case does not involve the

application of legislation retroactively to revive a claim

barred by existing law. This case involves the application

of a well settled judicial tolling rule of law. Petitioners

have no vested right in the non-application of a tolling

principle to a statute of limitation defense that had been

embedded in Texas law for nearly a century. Limitations

pertain to the remedy that may be affected and not to

substantive rights, and a change in a statute of limitation

applicable to a cause of action that is not barred is not

within the constitutional prohibition against retroactive

statutes. 12 Tex. Jur. Ill, “Constitutional Law,” § 181 nn

95-96, § 185. Petitioners cite McClung v. Johnson, 620

S.W.2d 644 (Tex. App. - Dailas, writ ref’d n.r.e.), however,

that case involved the retroactive application of legisla-

tion which purported to revive a cause of action other-

wise barred by the statute of limitations. There has been

no legislative impairment of a vested right in the instant

case.

PUNITIVE DAMAGES QUESTIONS WERE NOT

PROPERLY PRESENTED TO THE STATE COURTS

AND WERE WAIVED OR ARE PREMATURE AS

THERE HAS BEEN NO AWARD.

This Honorable Court has rejected constitutional

challenges to punitive damage awards which were not

raised, as here, in the trial court or the Court of Appeals,

Browning-Ferris Industries, Inc. v. Kelco Disposal, Inc., 492

U.S. 257, 106 L.Ed.2d 219, 109 S. Ct. 2909 (1989). Nor will

this Court review constitutional challenges to punitive

damage claims which were not properly presented or

passed upon by the state’s highest court. Bankers Life &

Casualty Co. v. Crenshaw, 486 U.S. 71, 100 L.Ed.2d 62, 108

S. Ct. 1645 (1988). In the instant case, none of the Texas

courts passed upon the constitutional challenge to the

punitive damage question since it was not presented in

the trial court, Court of Appeals or to the Supreme Court

until raised in a motion for rehearing. Further, there has

been no trial of the case, merely a reverse and remand for

a new trial. There may or may not be an award of puni-

tive damages in this case, and for this Court to grant the

Petition for Writ of Certiorari and review the punitive

damage question where there has been no award would

be to render an advisory opinion. Zacchini v. Scripps How-

ard Broadcasting Co., 433 U.S. 562, 97 S. Ct. 2847 (1977). ys

This is not the retroactive application of law which

revives a punitive damage claim, but rather the applica-

tion of well settled tolling principle to a statute of limita-

tion defense. Since the statute of limitation affects the

remedy and not substantive rights, there is no substantial

federal question raised. 12 Tex. Jur. III, “Constitutional

Law,” § 181 nn 95-96, § 185. Although this Court did

review the constitutionality of punitive damages under

the due process clause in Pacific Mutual Life Insurance Co.

v. Haslip, U.S. ___, 111 S. Ct. 1032 (1991), there was a

trial and an award of actual and exemplary damages and

constitutional challenges to the award of punitive dam-

ages were asserted in the state courts in accordance with

state court procedure. These questions are premature.

There is no slate for this Court to write upon and Peti-

tioners have no vested rights in having the Texas

Supreme Court ignore 100 years of case law.

¢

CONCLUSION

The Petition for Writ of Certiorari should be denied.

There are no constitutional questions presented and the

state court decision rests on adequate and independent

state procedural grounds. There is no final judgment nor

award of actual damages or exemplary damages and this

Court cannot render an advisory opinion as to constitu-

tional claims which have not properly been presented to

the state court.

Respectfully submitted,

Davip W. TowNEND

BROwN, BROWN, CHANDLER & TOWNEND

State Bar No. 20155700

P. O. Box 472286

Garland, Texas 75047

214/271-4561

214/278-3588 (Fax)

Attorneys for Respondent