Opposition Brief — Mathews v. Harris Methodist

No. 92-1431 sah ry 4 nn?

PAN 2 4 1353

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1992

EDWARD MATHEWS, BEARL MATHEWS,

NEHEMIA MATHEWS, NATHAN MATHEWS and

JAMES MATHEWS,

Vv.

HARRIS METHODIST, FORT WorTH,

A NON-PROFIT CORPORATION;

TARRANT-PARKER COUNTY MEDICAL EXAMINERS

DistTRICT; and LIONS ORGAN AND EYE BANK,

DistTRICT 2E2, INc., A TEXAS CORPORATION,

Re sponden ts.

On Petition For A Writ Of Certiorari

To The Supreme Court

Of The State Of Texas

BRIEF IN OPPOSITION OF RESPONDENT

HARRIS METHODIST, FORT WORTH

THEODORE MACK

RENFRO, Mack & HUDMAN

1800 First City Bank Tower

20] Main Street

Fort Worth, Texas 76102-3186

(817) 335-6261

Attorneys for Re spondent

Harris Methodist, Fort Worth

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

TABLE OF CONTENTS

Page

MANE SE PRI hctscheinbeinccscnahcdesst ns: i

TABLE OF AUTHORITIES o0........cccccccccscsccccccceeceeees il

STATEMENT OF THE CASE ............ccccccccssscccccoseeee 2

SUMMARY OF THE ARGUMENT ..........ccccccccccccceeees 2

I. PETITIONERS SEEK TO INVOKE JURISDIC-

TION UNDER THE WRONG STATUTE AND

SEEK TO OBTAIN A WRIT OF CERTIORARI

DIRECTED TO THE WRONG COURT ........... 3

II. PETITIONERS IMPROPERLY ASK THIS

COURT TO REVERSE A CONCLUSIVE EVI-

DENTIARY FINDING BY THE TEXAS

SOPINED ‘stesssscnsnduencasbisbainiennadeieisissletidsasdabuainccacss 4

III. EVEN 1.2 THIS COURT WISHES TO AN-

NOUNCE A NEW RULE RELIEVING LITI-

GANTS FROM THE CONSEQUENCES OF

THEIR ATTORNEYS’ NEGLIGENCE, THE

PRESENT CASE IS NOT THE APPROPRIATE

VEHICLE FOR THE CHANGE. ..........ccceeecees 6

IV. THIS COURT’S DECISION IN PERALTA MAN.-

DATES NEITHER GRANT OF THE WRIT NOR

REVERSAL OF THE COURTS BELOW. ........ 7

SANITY sikacnunichnsaetnmeanseacaatieasannldbaiantatcacan 12

TURF MSIE; wiaulvisaiiencsdcineabeaneinchcinistiabentnscsiacaasimanhidanncaaen la

RULE 8—TEX. R. CIV. Py occeccccccccccccceees la

RULE 134—TEX. R. APP. Poo oo.eeecccccccccsceees 2a

SECTION 22.001—TEX. GOV’T CODE. ......... 3a

RULE 21—TEX. R. CIV. Po oocececccccccccsceees da

TABLE OF AUTHORITIES

CASES Page

Ackermann v. United States, 340 U.S. 193, 71 S.

Ct. 209, 96 L.Ed. 2OT (IGG) ncrccsscisccscrecrsscercee 10,12

Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d

GUS (AUK. TO) tidied ee 8,9

Anderson, Clayton & Co. v. State, 122 Tex. 530, 62

S.W Bd 207 (Tem. IDBR) cccsosesccsecccceseccnsectereress 5

Armstrong v. Manzo, 380 U.S. 545, 85 S. Ct. 1187,

BG RTE OS (EI clicisnstescnssctedanee 8

Bank One Texas v. Moody, 830 S.W.2d 81 (Tex.

DURE bnncenevcisncanstsciahienioieacqennanaennoas 9

Buddy “‘L”’, Inc. v. General Trailer Co., 672 S.W.2d

541 (Tex. App.-Dallas 1984, wrt refd n.r.e) . 9

Callender v. Florida, 380 U.S. 519, 85 S. Ct. 1325,

14 L.Ed.2d 265 (1965) and 383 U.S. 270, 86

S. Ct. 924, 15 L.Ed.2d 749 (1966) ................. 3

Chicago, Rock Island & Gulf Railway Company v.

Harris, 119 Tex. 65, 245 S.W.2d 385 (Tex.

FEE sinsinsstiicticckmemennaaeneee 5

City of Laredo v. Threadgill, 686 S.W.2d 734 (Tex.

App.-San Antonio 1985, no writ) ....... eee 9

Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex.

RUNOD ssksissuiieisuniadscdaceaonieniaetiaiaees 5

Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388,

Bae Bee FSG CR pecewsesscicoscnes 9

Crutcher v. AEtna Life Insurance Co., 746 F.2d

TOTS (6 CAt: T9B® csrceserinenees 10,11

Harmon v. Sohio Pipeline Co., 623 S.W.2d 314 (Tex.

BIDE | iecncsxscasasssvenissnccendcanasausenainiaaeae 5

Irwin v. Veterans Administration, 498 U.S. 89, 111

S. Ct. 453, 112 L.Ed.2d 435 (1990) ................ 11

Klapprott v. United States, 335 U.S. 601, 69 S. Ct.

384, 98 L.Ed.2d 266 (1949) ..............cc.ccsccsceess 10

ill

Table of Authorities Continued

Page

Link v. Wabash Railroad Company, 370 U.S. 626,

82 S. Ct. 1386, 8 L.Ed.2d 734 (1962) .0..00...... 6,7,10

Lopez v. Lopez, 757 S.W.2d 721 (1988) .........0..... 89,10

Mathews v. Harris Methodist, Fort Worth, 834

S.W.2d 582, 585 (Tex. App.-Ft. Worth 1992,

a. ssuussiubncenkbesion 2,4,7,8

Mullane v. Central Hanover Bank & Trust Co., 339

U.S. 306, 70 S. Ct. 652, 94 L.Ed. 865

| cscucsoucasuanennions 8

National Labor Relations Board v. Pittsburg Steam-

ship Company, 340 U.S. 498, 71 S. Ct. 453,

95 L.Ed. 479, 482-483 (1951) 0.0... eeeeeeeeees 5

Pennoyer v. Neff, 5 Otto 714, 95 U.S. 714, 24 L.Ed.

a ~

Peralta v. Heights Medical Center, Inc., 485 U.S.

80, 108 S. Ct. 896, 99 L.Ed.2d 75

Te sansa casevesennasvscnsooseccese 2,7,8,9,10

Shipp v. Miller’s Heirs, 2 Wheat 248, 4 L.Ed. 316

aie aiicds cic essannnsnssévasnsevenevcnssenxdbbecees 11

Simpson v. James, 903 F.2d 572 (5th Cir. 1990) ... 5

Smith v. Ayer, 101 U.S. 320, 25 L.Ed. 955, 958

sialon scemninahavnsescenaounseceacevacces 6

Wilson v. Iseminger, 185 U.S. 55, 22 S. Ct. 573,

MP MME, WIE CRUMIID Snccscscnsencaicccesccccceccnccccccseces 11

FEDERAL STATUTES AND COURT RULES

I I i cnccacsncnnvaaneunevnnnnncsveconcaacscas 3

I A IIS ook vsscccnncsscccccsncecaseccecccscessenneree 3

a cndasenennscctacecoséocesaceones 11

RN Te MEIN can csnnnesvenssnsccsensacercsscccsecerneceane 11

OS ee 3,10

s. Ct as Ea atehes 4

ici scdakssicsanaseraensinnsnncansanenssacasecs l

Table of Authorities Continued

Page

STATE STATUTES AND COURT RULES

Tex. Gov’t Code Ann. § 22.001 (Vernon 1988) ..... 4,5

i ie HA TI ces vianicainasecsenenenneainsnnesecinsieans 3,4

Bk, Se Bs A sci cseceastncccarietipbensauversaannbaninsontiecse: 2,5

a i Ma AEC FEO aassinaccsisbecsetncasnccsauriaasnatatvebisaiarten 11

Be We ae We MIMD sihicrdicacacsccaeasesenenescvesniacahseaneceesens 1]

es a I ceceeethdibdiceuckalscuiscccessuelssmacnavce: 11

es ec I eet nena decn cosas 11

Bis ee. Wo I acicahaceesnsakilersacapeesnectanaeneteceoes 11

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1992

No. 92-1431

EDWARD MATHEWS, BEARL MATHEWS,

NEHEMIA MATHEWS, NATHAN MATHEWS and

JAMES MATHEWS,

Petitioners,

V.

HARRIS METHODIST, FORT WorTH,

A Non-PROFIT CORPORATION;

TARRANT-PARKER COUNTY MEDICAL EXAMINERS

DISTRICT; and LIONS ORGAN AND EYE BANK,

District 2E2, Inc., A TEXAS CORPORATION,

Respondents.

BRIEF IN OPPOSITION OF RESPONDENT

HARRIS METHODIST, FORT WORTH

TO THE HONORABLE, THE CHIEF JUSTICE OF THE

UNITED STATES, AND TO THE ASSOCIATE JUSTICES OF

THE SUPREME COURT OF THE UNITED STATES:

MAY IT PLEASE THE COURT:

Respondent, Harris Methodist, Fort Worth, a non-

profit corporation,’ respectfully presents its Brief in

Opposition to the Petition for Writ of Certiorari:

‘ Disclosure required by Rule 29.1: Harris Methodist, Fort

Worth is a Texas non profit corporation which operates a large

acute care hospital. While it has no corporate parents or sub-

sidiaries, it is controlled by Harris Methodist Health System, a

non profit corporation.

2

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STATEMENT OF THE CASE

Petitioners’ Statement of the Case is correct as far

as it goes. However, Petitioners fail to mention the

core undisputed adjudicative facts: At all relevant

times, Petitioners were represented by counsel of their

choice. Counsel moved his office during the pendency

of the case and consciously failed to give the Court

and opposing counsel notice of the change as required

by Rule 8, Texas Rules of Civil Procedure.? Both the

Trial Court and the Court of Appeals found this be-

havior to be negligent. Mathews v. Harris Methodist,

Fort Worth, 834 S.W.2d 582, 585 (Tex. App.-Ft.

Worth 1992, writ denied).

SUMMARY OF THE ARGUMENT

The Court should deny the Writ of Certiorari be-

cause Petitioners seek that Writ under the wrong

statute and directed to the wrong Court. Moreover,

granting the Writ and reversing the decision below

would require the Court to depart from its policy of

not reversing factual determinations of lower courts.

The present case is distinguishable from Peralta v.

Heights Medical Center, Inc., 485 U.S. 80, 108 S. Ct.

896, 99 L.Ed.2d 75 (1988), in several particulars, the

most important of which is that in the present case,

Petitioners were in court as plaintiffs represented by

counsel of their choice. Their case was dismissed be-

cause of that attorney’s negligence. This Court’s de-

cisions uniformly charge civil litigants with the

consequences of their attorneys’ acts. The applicable

Texas Rules and procedures afford procedural due

process to litigants in general and to Petitioners in

2 Appendix, p. la.

this case. The relief which Petitioners seek, if granted,

would effectively eliminate final dispositions of mat-

ters where there was inexcusable neglect by an

attorney. Relief would call into question many stat-

utes of repose, several decisions of this Court, and

the jurisprudence developed since 1938 under Federal

Rule of Civil Procedure 60(b 6).

I. PETITIONERS SEEK TO INVOKE JURISDICTION UN-

DER THE WRONG STATUTE AND SEEK TO OBTAIN

A WRIT OF CERTIORARI DIRECTED TO THE WRONG

COURT.

The Petition asserts that jurisdiction is conferred

by 28 U.S.C. § 1254(1).° That claim is erroneous on

its face, because § 1254 deals with jurisdiction to

review cases pending in the Federal Courts. Since the

present case comes from the State Courts of Texas,

this Court’s jurisdiction, if it exists, exists under 28

U.S.C. § 1257(a). Moreover, Petitioners seek a Writ

directed to the wrong Court.‘ If this Court were to

grant a Writ directed to the Supreme Court of Texas

as requested by Petitioners, the Court might inad-

vertently create the same sort of time consuming pro-

cedural morass reflected in the opinions in Callender

v. Florida, 380 U.S. 519, 85 S. Ct. 1825, 14 L.Ed.2d

265 (1965) and 383 U.S. 270, 86 S. Ct. 924, 15

L.Ed.2d 749 (1966).

In the present case, the Court of Appeals for the

Second Appellate District of Texas is the highest

Court which decided the case. The Orders of the

Supreme Court of Texas merely denied review. More-

over, aS mandated by Rule 134, Texas Rules of Ap-

3 Petition for Writ of Certiorari (‘‘Petition’’), p. 4.

‘ Petition, caption, p. 1 and p. 29.

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pellate Procedure,® the Appellate Record is in the

possession of the Clerk of the Court of Appeals for

the Second Appellate District at Fort Worth rather

than in the possession of the Clerk of the Supreme

Court of Texas.

Respondent does not claim that invoking jurisdic-

tion under the wrong statute or seeking a writ di-

rected to the wrong Court forecloses review by this

Court. However, we do believe that these are matters

which are required to be brought to the Court’s at-

tention under Rule 15.1. Improper invocation of the

Court’s jurisdiction and seeking a writ directed to the

wrong Court are grounds for denying Certiorari. Both

errors are indicative of the general lack of merit in

the Petition.

II. PETITIONERS IMPROPERLY ASK THIS COURT TO

REVERSE A CONCLUSIVE EVIDENTIARY FINDING

BY THE TEXAS COURTS.

In the present case, the Court of Appeals made a

conclusive factual determination:

“We hold that the evidence is sufficient and

does support the trial court’s finding that

Appellants were negligent because there was

evidence that the case remained inactive for

at least a year and Appellants failed to give

the District Court Clerk notice of their most

recent mailing address.’’ Mathews, 834

S.W.2d at 585.

Under Texas law, the Supreme Court of Texas is

without jurisdiction to review factual determinations

of the Courts of Appeals. Tex. Gov’t Code Ann. §

5’ Appendix, p. 2a.

a |

22.001 (Vernon 1988).° See also, Chicago, Rock Island

& Gulf Railway Company v. Harris, 119 Tex. 65, 245

S.W.2d 385 (Tex. 1930), Anderson, Clayton & Co. v.

State, 122 Tex. 530, 62 S.W.2d 107 (Tex. 1933); Har-

mon v. Sohio Pipeline Co., 623 S.W.2d 314 (Tex.

1981).

As we demonstrate at Section IV infra, the finding

of negligence by the Trial Court, affirmed by the

Court of Appeals, is the central reason Petitioners’

Bill of Review was denied in the Texas Courts. This

Court can order the Texas Courts to grant a Bill of

Review on this Record only if this Court substitutes

its view of the evidence and of its sufficiency for

demonstrably correct fact findings by those Courts.’

That sort of evidentiary second guessing is generally

contrary to this Court’s stated policies. National La-

bor Relations Board v. Pittsburg Steamship Company,

340 U.S. 498, 71 S. Ct. 453, 95 L.Ed. 479, 482-483

(1951) (Frankfurter, J.).

‘Appendix, pp. 3a-4a.

7 That there was ample evidentiary support for the Court’s

negligence finding cannot be doubted. Petitioners’ trial counse]

failed to notify the Court and the other parties of his change

of address as Rule 8, Texas Rules of Civil Procedure, required

him to do. Texas attorneys are charged with the standard of

care of what a reasonably prudent attorney would have done

under the same or similar circumstances. There is a quadripartite

test for recovering monetary damages for an attorney’s mal-

practice. The plaintiff must prove: (1) that the defendant owed

a duty to the plaintiff; (2) that the defendant breached the duty;

(3) that the breach of duty proximately caused plaintiff's injury;

(4) damages resulted. Proximate causation encompasses both

cause in fact and foreseeability. Cosgrove v. Grimes, 774 S.W.2d

662, 664 (Tex. 1989); accord, Simpson v. James, 903 F.2d 572

(5th Cir. 1990). Since the present case was not a malpractice

case, the damage issue was not before the lower courts.

ee

Ill. EVEN IF THIS COURT WISHES TO ANNOUNCE A

NEW RULE RELIEVING LITIGANTS FROM THE

CONSEQUENCES OF THEIR ATTORNEYS’ NEGLI-

GENCE, THE PRESENT CASE IS NOT THE APPRO-

PRIATE VEHICLE FOR THE CHANGE.

Petitioners endeavor to bootstrap the negligence of

their chosen attorney into a deprivation of Fourteenth

Amendment procedural due process. The attempt,

while ingenious, is bizarre. It is the functional equiv-

alent of the apocryphal tale of the parricide throw-

ing himself on the mercy of the jury because he is

an orphan. In civil cases, this Court has been un-

wavering in its view that litigants are bound by the

acts of their attorneys. Both the rule and the reason

have never been more clearly stated than in the oft

cited opinion of Justice Harlan in Link v. Wabash

Railroad Company, 370 U.S. 626, 82 S. Ct. 1386, 8

L.Ed.2d 734 (1962):

: “There is certainly no merit to the contention

| that dismissal of petitioner’s claim because of

his counsel’s unexcused conduct imposes an

unjust penalty on the client. Petitioner vol-

untarily chose his attorney as his represent-

ative in the action, and he cannot now avoid

the consequences of the acts of omission of

this freely selected agent. Any other notion

would be wholly inconsistent with our system

of representative litigation, in which each

party is deemed bound by the acts of his

lawyer-agent and is considered to have ‘no-

tice of all facts, notice of which can be

charged upon the attorney.’ Smith v. Ayer,

101 US 320, 326, 25 L ed 955, 958.”" Link,

370 U.S. at 633-634, 8 L.Ed.2d at 740 (Foot-

note omitted).

In the omitted Footnote, the Court points out that

the remedy for a party whose attorney has been neg-

ligent is a suit for malpractice. Other relief such as

keeping the suit alive in order not to penalize a lit-

igant for his attorney’s negligence would amount to

“visiting the sins of plaintiff's lawyer upon the

defendant’ Link, 370 U.S. at 633-634, 8 L.Ed. at 740

n. 10 (emphasis in original). In the case at bar, there

is not even a superfically plausible explanation for

Petitioners’ counsel’s failure to inform the Court of

his change of address. There is not a hint of inter-

ference, overreaching, or bad faith by Respondent. In

fact, there are findings to the contrary. Mathews, 834

S.W.2d at 584. This Record is not one on which to

abrogate a longstanding rule and to announce that

henceforth due process mandates that the Courts of

the several States relieve litigants from the conse-

quences of egregious breaches of duty by their freely

chosen attorneys.

IV. THIS COURT’S DECISION IN PERALTA MANDATES

NEITHER GRANT OF THE WRIT NOR REVERSAL OF

THE COURTS BELOW.

From the time their new counsel discovered that

the case had been dismissed, Petitioners have con-

sistently attempted to analogize themselves to the

successful petitioner in Peralta, supra. Their effort

must continue to fail because the analogy is not apt.

We have already demonstrated that the present case

is a case of inexcusable attorney neglect rather than

the case of an opposing party or a clerk failing to

give notice.* In addition to this most important dis-

tinction and to those drawn by the Court of Appeals

® See Sections II & III, pp. 4-7 supra.

in its opinion’, Peralta, supra, cannot be stretched to

afford Petitioners any relief. Moreover, the decisions

of the Supreme Court of Texas in Lopez v. Lopez,

757 S.W.2d 721 (1988) and in denying review in the

present case, conclusively demonstrate that the Texas

Courts have understood the teaching of Peralta and

have accommodated that teaching into Texas post-

judgment relief procedures. This Court should require

no more. g

Properly understood Peralta stands for the prop-

osition that in a case where a judgment is taken

against a non party by a court without in personam

jurisdiction, due process requires that a State provide

a procedural mechanism for relief. There the Texas

courts strictly construed the Texas requirements for

granting a Bill of Review and denied relief to the

non party." This Court found that strict construction

irreconcilable with its prior decisions requiring notice

and an opportunity for hearing and concerning in

personam jurisdiction, such as Mullane v. Central

Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct.

652, 94 L.Ed. 865 (1950); Armstrong v. Manzo, 380

U.S. 545, 85 S. Ct. 1187, 14 L.Ed.2d 62 (1965); and

Pennoyer v. Neff, 5 Otto 714, 95 U.S. 714, 24 L.Ed.

565 (1877). Thus, the Court held that Texas proce-

® See Mathews, 834 S.W.2d at 584-585.

‘© Those requirements are classically set out in Alexander v.

Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (Tex. 1950). In order

to obtain relief, a party must plead and prove: (1) a meritorious

defense; (2) which he was prevented from making due to the

fraud, accident or mistake of the opposing party; and (3) un-

mixed with any fault or negligence of his own. Alexander, 226

S.W.2d at 998. In Peralta, the non party could not show a

meritorious defense.

dure, in order to comport with due process, must

afford some means of relief to a non party against

whom a judgment has been taken by a court without

in personam jurisdiction.

Not only did the Texas Court immediately adopt

the teachings of Peralta, but it took them further

than a strict reading of the opinion requires. Peralta

involved a final judgment against a non party. In

contrast, Lopez, supra, involved a post-answer default

judgment entered without notice against a pro se

party." In Lopez, the Supreme Court held that Per-

alta required relief to the pro se litigant who after

default failed to establish a meritorious defense. Lo-

pez’s only real similarity to Peralta is that both liti-

gants failed to set up a meritorious defense.

In contrast to both Peralta and Lopez, the present

case turns neither on the merits of the underlying

claim nor upon a failure to give or receive notice nor

upon the fact that a party was pro se. The outcome

of the present case in the lower courts was mandated

by the negligence or fault of Petitioners’ chosen

counsel. The present Texas rule which can be re-

dacted from Alexander, supra, Peralta, supra, Lopez,

supra, and from decisions such as City of Laredo v.

Threadgill, 686 S.W.2d 734 (Tex. App.-San Antonio

1985, no writ) and Buddy “‘L”’, Inc. v. General Trailer

Co., 672 S.W.2d 541 (Tex. App.-Dallas 1984, writ ref'd

n.r.e) is that a litigant who has no notice of a dis-

1 Under Texas law, courts require the same basic showing on

a motion to set aside a default judgment as they do to grant

a Bill of Review. Craddock ». Sunshine Bus Lines, Inc., 134

Tex. 388, 133 S.W.2d 124 (1939); Bank One, Texas v. Moody,

830 S.W.2d 81 (Tex. 1992).

10

missal for want of prosecution must seek reinstate-

ment within a maximum of 120 days from the date

of the signing of the order of dismissal or be relegated

to seek reinstatement by means of a Bill of Review.

To obtain a Bill of Review, the litigant must show a

meritorious claim or defense which he was prevented

from making by the fraud, accident, or mistake of

the opposing party or of official clerical personnel as

a consequence of an act of the opposing party and

unmixed with any fault or negligence of his own, or

that the litigant was, in fact, a non party, or that

the litigant was not represented by counsel. If the

Court were to grant Petitioners the relief they seek,

one would be required to add this final proviso to the

Texas rule: ‘‘Provided, however, in all cases where

the judgment in question is as a result of attorney

negligence, incompetence, sloth, or other inexcusable

neglect, the Court shall grant relief from the judg-

ment.”

Texas procedures, as they now exist, that is, as

modified by Peralta, interpreted by Lopez, and delim-

ited by the decision below in the present case serve

the same equitable function as Federal Rule of Civil

Procedure 60(bX6). Granting Petitioners the relief

which they seek would call into question large num-

bers of State and Federal procedural deadlines and

statutes of limitations. Relief would certainly vitiate

a significant portion of the relatively stable body of

case law which has grown up around Rule 60(b\X6)

Fed.R.Civ.P. since 1938. Link, supra; Ackermann v.

United States, 340 U.S. 193, 71 S. Ct. 209, 95 L.Ed.

207 (1950); Klapprott v. United States, 335 U.S. 601,

69 S. Ct. 384, 93 L.Ed.2d 266 (1949); Crutcher v.

11

AEtna Life Insurance Co., 746 F.2d 1076 (5th Cir.

1984).

Petitioners appear to urge that due process re-

quired Respondents to prove the Petitioners received

notice of the Court’s intention to dismiss and of the

dismissal.!2 While that requirement would, no doubt,

substantially increase postal revenues due to a vast

increase in the use of certified mail, due process im-

poses no such requirement. If due process requires

proof of actual receipt in all instances, the constitu-

tionality of Rule 5(b), Federal Rules of Civil Proce-

dure, and the parallel provisions of Texas Rules of

Civil Procedure 21 and 21a" is doubtful. Neither ac-

tual receipt nor proof of actual receipt is required by

due process under this Court’s decisions. Irwin v.

Veterans Administration, 498 U.S. 89, 111 S. Ct. 453,

112 L.Ed.2d 435 (1990).

Procedural limitations on the power of Courts to

grant relief from final judgments such as those con-

tained in Texas Rules of Civil Procedure 165a, 306a,

and 329b(f) and in Federal Rule of Civil Procedure

60(b) are in the nature of statutes of limitation or

statutes of repose and bring a necessary element of

finality to civil litigation. Statutes of repose have long

found favor with this Court. Shipp v. Miller’s Heirs,

2 Wheat 248, 4 L.Ed. 316 (1817); Wilson v. Iseminger,

185 U.S. 55, 22 S. Ct. 573, 46 L.Ed. 804 (1902). The

reason is not difficult to discern:

“There must be an end to litigation someday,

and free, calculated deliberate choices are not

12 Petition, pp. 27-28.

18 Appendix pp. 5a-7a.

7 ————

12

to be relieved from.’’ Ackermann, 340 U.S.

at 198, 95 L.Ed. at 211.

CONCLUSION

Respondent, Harris Methodist, Fort Worth, prays

that the Petition for Writ of Certiorari be denied.

THEODORE MACK

RENFRO, MACK & HUDMAN

1800 First City Bank Tower

4 201 Main Street

Fort Worth, Texas 76102-3186

: (817) 335-6261

: Attorneys for Respondent

Harris Methodist, Fort Worth

SOR CN IF aed MEE ee ee

rl ds FR Ee hy Feel us

ON SA

APPENDIX

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3 tinal ser de ay Bd ate St hn

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APPENDIX

RULE 8—TEX. R. CIV. P.

RULE 8. ATTORNEY IN CHARGE

On the occasion of a party’s first appearance through

counsel, the attorney whose signature first appears on the

initial pleadings for any party shall be the attorney in

charge, unless another attorney is specifically designated

therein. Thereafter, until such designation is changed by

written notice to the court and all other parties in ac-

cordance with Rule 21a, said attorney in charge shall be

responsible for the suit as to such party.

All communications from the court or other counsel with

respect to a suit shall be sent to the attorney in charge.

2a

RULE 134—TEX. R. APP. P.

RULE 134. WHEN APPLICATION

DENIED, DISMISSED OR

REFUSED

When the application shall have been filed for a period

of ten days, if the court determines to deny, refuse or

dismiss the same, whether or not the respondent has filed

a brief in response, the clerk of the court will retain the

application, together with the record and accompanying

papers, for fifteen days from the date of rendition of the

judgment denying, refusing or dismissing the writ. At the

end of that time, if no motion for rehearing has been filed,

or upon the overruling or dismissal of a motion for re-

hearing, the Clerk of the Supreme Court shal] transmit to

the court of appeals a certified copy of the orders denying,

refusing or dismissing the application and of the order

overruling the motion for rehearing and shall return all

filed papers to the Clerk of the Court of Appeals, except

the application for writ of error, any brief in response and

any other briefs filed in the Supreme Court.

;

3a

SECTION 22.001—TEX. GOV’T CODE

§ 22.001. Jurisdiction

(a) The supreme court has appellate jurisdiction except

in criminal law matters, coextensive with the limits of the

state and extending to all questions of law arising in the

following cases when they have been brought to the courts

of appeals from appealable judgment of the trial courts:

(1) a case in which the justices of a court of appeals

disagree on a question of law material to the decision;

(2) a case in which one of the courts of appeals

holds differently from a prior decision of another court

of appeals or of the supreme court on a question of

law material to a decision of the case;

(3) a case involving the construction or validity of

a statute necessary to a determination of the case;

(4) a case involving state revenue;

(5) a case in which the railroad commission is a

party; and

(6) any other case in which it appears that an error

of law has been committed by the court of appeals,

and that error is of such importance to the juris-

prudence of the state that, in the opinion of the

supreme court, it requires correction, but excluding

those cases in which the jurisdiction of the court of

appeals is made final by statute.

(b) A case over which the court has jurisdiction under

Subsection (a) may be carried to the supreme court either

by writ of error or by certificate from the court of appeals,

but the court of appeals may certify a question of law

arising in any of those cases at any time it chooses. either

before or after the decision of the case in that court;

(c) An appeal may be taken directly to the supreme

court from an order of a trial court granting or denying

4a

an interlocutory or permanent injunction on the ground of

the constitutionality of a statute of this state. It is the

duty of the supreme court to prescribe the necessary rules

of procedure to be followed in perfecting the appeal.

(d) The supreme court has the power, on affidavit or

otherwise, as the court may determine, to ascertain the

matters of fact that are necessary to the proper exercise

of its jurisdiction.

5a

RULE 21—TEX. R. CIV. P.

RULE 21. FILING AND SERVING

PLEADINGS AND MOTIONS

Every pieading, plea, motion or application to the court

for an order, whether in the form of a motion, plea or

other form of request, unless presented during a hearing

or trial, shall be filed with the clerk of the court in writing,

shall state the grounds therefor, shall set forth the relief

or order sought, and at the same time a true copy shall

be served on all other parties, and shall be noted on the

docket.

An application to the court for an order and notice of

any hearing thereon, nct presented during a hearing or

trial, shall be served upon all other parties not less than

three days before the time specified for the hearing unless

otherwise provided by these rules or shortened by the

court.

If there is more than one other party represented by

different attorneys, one copy of such pleading shall be

delivered or mailed to each attorney in charge.

The party or attorney of record, shall certify to the

court compliance with this rule in writing over signature

on the filed pleading, plea, motion or application.

After one copy is served on a party that party may

obtain another copy of the same pleading upon tendering

~ reasonable payment for copying and delivering.

6a

RULE 2la—TEX. R. CIV. P.

RULE 2la METHODS OF SERVICE

Every notice required by these rules, and every plead-

ing, plea, motion, or other form of request required to be

served under Rule 21, other than the citation to be served

upon the filing of a cause of action and except as otherwise

expressly provided in these rules, may be served by de-

livering a copy to the party to be served, or the party’s

duiy authorized agent or attorney of record, as the case

may be, either in person or by agent or by courier re-

ceipted delivery or by certified or registered mail, to the

party’s last known address, or by telephonic document

transfer to the recipient’s current telecopier number, or

by such other manner as the court in its discretion may

direct. Service by mail shall be complete upon deposit of

the paper, enclosed in a postpaid, properly addressed wrap-

per, in a post office or official depository under the care

and custody of the United States Postal Service. Service

by telephonic document transfer after 5:00 p.m. local time

of the recipient shall be deemed served on the following

day. Whenever a party has the right or is required to do

some act within a prescribed period after the service of

a notice or other paper upon him and the notice or paper

is served upon by mail or by telephonic document transfer,

three days shall be added to the prescribed period. Notice

may be served by a party to the suit, an attorney of

record, a sheriff or constable, or by any other person

competent to testify. The party or attorney of record shall

certify to the court compliance with this rule in writing

over signature and on the filed instrument. A certificate

by a party or an attorney of record, or the return of an

officer, or the affidavit of any person showing service of

a notice shall he prima facie evidence of the fact of service.

Nothing herein shall preclude any party from offering proof

that the notice or instrument was not received, or, if ser-

vice was by mail, that it was not received within three

Ta

days from the date of deposit in a post office or official

depository under the care and custody of the United States

Postal Service, and upon so finding, the court may extend

the time for taking the action required of such party or

grant such other relief as it deems just. The provisions

hereof relating to the method of service of notice are

cumulative of all other methods of Service prescribed by

these rules.