# Opposition Brief — Parkhill v. Aduddell

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0622%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 505 U.S. 1207

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0622%3A2. Public record. Not legal advice.