Opposition Brief — New York Department Stores de Puerto Rico, Inc. v. Almacenes Rodriguez, Inc.

Supreme Court, y. :

ee ae i En

8 NR IO

.

j

ww f

a

a

No. 99-656 | CLERK |

IN THE

Supreme Court of the United States

NEW YORK DEPARTMENT STORES

DE PUERTO RICO, INC.,

Petitioner,

v.

ALMACENES RODRIGUEZ, INC.

and E. RODRIGUEZ & SONS, INC.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE C@MMONWEALTH OF PUERTO RICO

RESPONDENTS’ BRIEF IN OPPOSITION

FEDERICO CALAF-LEGRAND EDWARD M. BorGEs

NELSON RIVERA-CABRERA Counsel of Record

REICHARD & CALAF, PSC Borces Law CentER, P.S.C.

P.O. Box 9022946 Union Plaza Bldg. PH A

San Juan, PR 00902-2946 416 Ponce de Leon Avenue

(787) 725-1004 San Juan, PR 00918

(787) 753-1934

Attorneys for Respondents

156591 q] Counsel Press LLC

FORMERLY LUTZ APPELLATE SERVICES

(800) 274-3321 + (800) 359-6859

i

COUNTERSTATEMENT OF

QUESTIONS PRESENTED

A. Since the decision appealed from is interlocutory,

does this Honorable Court lack jurisdiction to enable it to

entertain the Petition?

B. Does the manner in which the Supreme Court of

Puerto Rico applies and interprets a rule of its creation

(Rule 10(A) of the Regulations of the Circuit Court of

Appeals of the Commonwealth of Puerto Rico) to permit a

lower appellate court to state the essential facts, and adopt

by reference the findings of the lower court, comport with

the requirements of due process under the United States

Constitution?

li

COUNTERSTATEMENT AND

STATEMENT PURSUANT TO RULE 29.6

Petitioner, New York Department Stores de Puerto Rico,

Inc. (“NYDS”) is owned 100% by Marshalls of MA, Inc.,

(herein “Marshalls”) which in turn is a wholly-owned

subsidiary of TJX Companies, Inc., which is traded on the

New York Stock Exchange (Symbol = TJX).

Neither Respondent has a parent company and no

publicly held company owns 10% or more of the stock of

either Respondent.

a Da haa

iil

TABLE OF CONTENTS

Page

Counterstatement of Questions Presented ........ i

Counterstatement and Statement Pursuant to Rule

PR oe as naw pk ekg wie abce hd Maa ee ME li

es acs cies keds bk ad ce pO LOS lil

Ne On SE PANNE 66 ooo nc aca nse tie o'n' bs Vv

| eee error ee ee re ee ry rar ix

Opinions Below ........ PE Oe eg ote pe ]

Statement of Jurisdiction .................6..- 3

Constitutional and Statutory Provisions Involved . 3

Counterstatement of the Case ................6. +

gS rere er re 8

Reasons for Denying the Writ ................. 9

A. This Court Lacks Jurisdiction Over This

Controversy Because It Is Not A Final

BN hc is wpeee os obese ak key casas s 9

B. Respondents Recognize That This Court Has

Consistently Held Some Form Of A Hearing

Is Required Before An Individual Can Be

Deprived Of A Property Interest, But The

Form Of The Hearing Is Variable. ........ 13

iv

Contents

°

The Process Here Afforded Was Fair. ..... 14

D. Had An Injustice Occurred, This Court Could

Have Reviewed, On Certiorari, The Lower

Court’s Decision, By Analogy To How The

State Appeals Are Taken. . 0... asccass 17

hae

E. The Local Cases Interpreting Rule 10(A) Do

Not Apply Because In This Case The

Appellate Court In Fact Did Render A

SR. Soi soc Wace eWne Oe te eee ees 19

si epee

F. What Petitioner Seeks Here Is A Review De

Novo Of The Facts And The Law In This

os chs oO ES 6 eee eas 21

G. Even If There Was A Failure By The

Appellate Court To Give New Reasons For

Its Affirmance Of The Lower Court, This

Failure Does Not Rise To The Level Of A

Federal Due Process Obligation, Because To

Do So Permits All Appeals To Become

Alleged Deprivations Of Federal Due

PUI kkk Sb 26 cae CK ie tae 23

H. Other Due Process Cases Give No Support

FO Petal S BORON. oo ck co caress 25

COMO IIIEIE a ce i eee ea es 26

TABLE OF CITED AUTHORITIES

Page

Cases:

Abernathy v. Alabama, 380 U.S. 447 (1965) ..... 18

Amsden v. Moran, 904 F.2d 748 (1* Cir. 1990) ... 14

Asociacion de Propietarios v. Santa Barbara Co.,

epee k & Sk ths) +3 or raat ea EGin dy reer 16, 17

Bose Corp. v. Consumers’ Union of the United

States, 466 U.S. 485, 104 S. Ct. 1949, 80 L. Ed.

ye Ee Ferree poe encet Darang ion ahr Rape 22

Camaleglo v. Dorado Wings, 118 D.P.R. 20 (1986)

bChdeeS Ge Re aE EE EN ENS MLE ELIE a a ee 10, 12

Connecticut v. Doehr, 501 U.S. 1, 111 S. Ct. 2105,

RES Rei Bs ee A RUD: coh ek eee 13

Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95

S. Ct. 1029, 43 1. Ba, 20 328 C97S) oon cia 10

Departamento de la Familia v. Shrivers Otero, 98

TR OE es AUD an ta dsecd enbuaiesee bs 19, 20, 21

Dolphin v. Ryder, 127 D.P.R. 869 (1991) ........ 12

Doyle v. Secretary of HHS, 848 F.2d 296 (1* Cir.

SUG Shier ered BHC EERE het ee 14

vi

Cited Authorities

Page

First Federal Savings Bank v. Carlos Nazario

Gonzales, 95 COT IGE GPRS) evn s Sak tesco 11,12

Gorman v. University of R.I., 837 F.2d 7 (1* Cir.

19GE) ca vetuedtisendieeced eee 14

Hewitt v. Helms, 459 U.S. 460, 103 S. Ct. 864, 74

B. BA. SE GPS CURSOS oc okt cabin sees ahaa 25, 26

IBEC v. Blanco Lugo, 267 F.2d 263 (1* Cir. 1959)

EPCS ETT TT ee ee ye Ee 17

Jefferson v. City of Tarrant, Alabama, 522 U.S. 75,

118 S. Ct. 481, 139 L. Ed. 2d 433 (1997) ..... 3,9, 10

Levine v. Torvik, 986 F.2d 1506 (6" Cir. 1993), cert.

denied, S09 U.S.907 (1993) 0. eehnc iss cs ow 24

Logan v. Zimmerman Brush Co., 455 U.S. 422

(1982): 6a seas Sh eee ee Ae eee 25

Maldonado Bermudez v. Nilsa Maldonado, 96 JTS

S6 (PR: 1996) vcs dees (iveuae sadaeeas 19, 20, 21

Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893,

4/ L. BG. 26 36 CEP) okie 13, 14

Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593,

S33 Ts EG, BB AOR CIS TaD ik 4a eed hides 14

vii

Cited Authorities

Page

Neron v. Tierney, 841 F.2d 1197 (1* Cir. 1988), cert.

denied, 488 U.S. 832, 109 S. Ct. 90, 102 L. Ed.

MEE OO) 68s 65a bs £0558 dk Cw le 14

Newman v. Burgin, 930 F.2d 955 (1* Cir. 1991)... 14

Reardon v. United States, 947 F.2d 1509 (1* Cir.

SOAS: sadist ed oe ews cc ie Cee TE 13

Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293,

Pe Bes es ee CT ics 51s be eee 25, 26

Thompson v. City of Louisville, 362 U.S. 199

CRE dak Kee ike cd oe ee a ee ae 18

Wolff v. McDonnell, 418 U.S. 539, 94 S. Ct. 2963,

A Ei SO PR LOT, 6 oc vend veka wa eee ks 13

Yvonne Gil de Rebollo v. Miami Heat Associations,

ING AOE Ee Gs AE ad es Cae eae ee 15

Zinermon v. Burch, 494 U.S. 113, 110 S. Ct. 975,

Re Bei Ss DR Be CASO 6 6b 6s beak eo Kenda 14

Statutes:

Pe a BANE ore hc ah eles Bs 3,9, 17,18

Set BA ose he or ake pee 9

SP As FRA a ERS Aenean we 3, 9, 17, 18

Vili

Cited Authorities

Page

United States Constitution:

Fourtoonin Ament. ci ec 6 a 15, 24

Rule:

Rule 10(A) of the Regulations for the Puerto Rico

Circuit Court of Appeals, promulgated by the

Supreme Court of Puerto Rico, effective May 1,

1996, T4. L.P.R.A. Ap. XXII-A R.10 ........ passim

ix

TABLE OF APPENDICES

Page

Appendix — Decision Of The Circuit Court Of

Appeals, San Juan Regional Circuit Dated

PINE Fi RON op ie eae ek ee Rech aee Cede la

ee. a ee ee ae a

|

OPINIONS BELOW

1. Decision of the Court of First Instance, San Juan

Superior Division, rendered on December 23, 1996 in Civil

Action KPE94-0345 (803) (Petition, App. C, pp. 9a-54a.)

2. Decision of the Circuit Court of Appeals, San Juan

Regional Circuit, rendered on September 23, 1998 (Petition,

App. B, pp. 2a-8a).

3. Motion of Petitioner Requesting Reconsideration

before the Circuit Court, dated October 23, 1998.

4. Resolution of the Appellate Court denying the

requested reconsideration, dated February 9, 1999 (See

Appendix A, infra.).

5. Writ of certiorari to the Supreme Court of Puerto

Rico, filed by Petitioner on March 24, 1999.

6. Resolution of the Supreme Court of Puerto Rico dated

May 14, 1999, entered and notified on May 17, 1999, denying

Petitioner’s requested Writ of Certiorari, with a simple

statement: “no ha lugar” whose correct interpretation is the

equivalent of “denied”.

7. Motion Seeking Reconsideration, filed by Petitioner

before the Supreme Court of Puerto Rico on June 1, 1999.

8. Resolution of the Supreme Court of Puerto Rico dated

June 18, 1999, entered and notified on June 22, 1999, denying

Petitioner’s Motion Requesting Reconsideration of June ¥

1999, with a simple statement: “no ha lugar” whose correct

interpretation is the equivalent of “denied”.

2

9. Second Motion Seeking Reconsideration, filed by

Petitioner before the Supreme Court of Puerto Rico on June

25, 1999.

10. Second Resolution of the Supreme Court of Puerto

Rico dated July 16, 1999, entered and notified on July 21,

1999, denying Petitioner’s Second Motion requesting

Reconsideration, with a simple statement: “no ha lugar”

whose correct interpretation is the equivalent of “denied,”

and with the phrased “aténgase,” which is interpreted as

“abide by it.” The phrase “aténgase,” further means that the

Supreme Court of Puerto Rico has accepted its last motion

for reconsideration on the matter, and will not accept any

further motions for reconsideration.

11. Motion of Petitioner to Retain the Mandate in the

Supreme Court of Puerto Rico, dated July 28, 1999, and

advising the Supreme Court of Puerto Rico of its intention

to file a Petition for a Writ of Certiorari on Federal Due

Process grounds.

12. Reiteration by Petitioner of its motion to hold the

Mandate, dated October 4, 1999, indicating the Petition

would be filed in the Supreme Court of the United States by

October 14, 1999.

13. Resolution of the Supreme Court of Puerto Rico

dated October 8, 1999, entered and notified October 13, 1999,

denying Petitioner’s request that it retain the Mandate

pending Petitioner’s filing of a Petition for Writ of Certiorari.

14. Second Motion requesting retention of the Mandate,

dated October 20, 1999, indicating that the Petition had been

filed and once again requesting retention of the Mandate.

3

15. Third motion requesting retention of the Mandate,

informing that the case has been docketed, and forwarding

copy of the letter of the Clerk of the Court of the Supreme

Court of the United States to that effect.

16. Resolution by the Supreme Court of Puerto Rico,

dated October 29, 1999, entered and notified November 1,

1999, once again declaring “no ha lugar” Petitioner’s request

to retain the Mandate.

STATEMENT OF JURISDICTION

As hereinafter argued in detail, this Honorable Court lacks

jurisdiction over this Petition because appeals can only be had

against final judgments of the Supreme Court of Puerto Rico

(28 U.S.C. § 1258). A similar rule applies to the States as well

(28 U.S.C. § 1257). Interpreting the latter statutory provision,

this Court has recently ratified this “final judgment rule”

requirement in a case involving Section 1257, Jefferson v. City

of Tarrant, Alabama, 522 U.S. 75, 118 S. Ct. 481, 139 L. Ed.

2d 433 (1997). As shall be shown, determination of liability

does not finally adjudicate the claim, and until that occurs, under

Puerto Rico law, the judgment is interlocutory, not final.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The statutory provision involved in this case is 28 U.S.C.

§ 1258, which reads as follows:

Final judgments or decrees rendered by the Supreme

Court of the Commonwealth of Puerto Rico may be

reviewed by the Supreme Court by writ of certiorari

where the validity of a treaty or statute of the United

4

States is drawn in question or where the validity of

a statute of the Commonwealth of Puerto Rico is

drawn in question on the ground of its being

repugnant to the Constitution, treaties, or laws of

the United States, or where any title, right, privilege,

or immunity is specially set up or claimed under the

Constitution or the treaties or statutes of, or any

commission held or authority exercised under, the

United States.

COUNTERSTATEMENT OF THE CASE

On May 19, 1993, Petitioner New York Department

Stores, Inc. (herein “NYDS”) entered into a license

agreement with Respondents', to operate shoe departments

in ten stores operated by NYDS in Puerto Rico

(the “Agreement”). The Agreement was for a duration of

five years, renewable by Respondents for two additional five-

year periods. One year into the Agreement, Investcorp, an

entity that represented the stockholders of NYDS, and which

was engaged in the business of buying financially troubled

concerns to make them solvent, and then sell them at a profit,

saw an opportunity to sell NYDS’s stock to Marshalls of

MA, Inc., a wholly-owned subsidiary of TJX Companies,

Inc. (herein “Marshalls”). Because the existence of such a

possible transaction had been contemplated by the

Respondents, they sought and obtained a clause (Clause 22)

in the Agreement which imposed on NYDS the obligation

of making the Agreement binding on anyone purchasing the

1. In fact, the agreement was signed with Almacenes

Rodriguez, Inc., which was owned by Emilio Rodriguez Nigaglioni,

who also was the sole owner of E. Rodriguez & Sons, Inc. The

lower court found as a matter of fact that the parties treated these

corporations interchangeably.

5

business. Petitioner and Respondents came to agree upon

all of the essential terms and conditions of the contract.

NYDS forwarded Respondents a contract initialed and signed

by its President, and authorized Respondents to commence

performance, which Respondents did. After performance had

commenced and before the agreement was returned signed

by Respondents, NYDS tried to get Respondents to amend

the contract by signing an addendum terminating the

agreement if NYDS were sold. Respondents refused. In the

negotiations with Marshalls, NYDS represented the

Agreement was in full force and effect, and neither of the

parties had breached it. Marshalls insisted in running its own

shoe departments, and insisted that Respondents be removed

from the stores. NYDS offered a compensation for the

premature cancellation of the Agreement, which Respondents

refused. To carry out this removal, NYDS had clearance

sales, and closed its stores. Respondents were allowed to

participate in the clearance sales. When such sales concluded,

NYDS closed its stores and Respondents were obliged to

abandon their shoe departments. When the NYDS stores

subsequently reopened, the shoe departments were run by

Marshalls and Respondents were denied the right to

participate in the operation. Respondents sued NYDS for

breach of contract and damages. Petitioner denied that a

contract existed contending that its Board of Directors did

not approve it, that Respondents had agreed to sign the

Addendum, and that in any event Respondents were

precluded from seeking specific enforcement of the

agreement since Respondents breached the contract by

assigning the agreement.. The Court of First Instance, San

Juan Superior Court, (herein the “lower court”) having

bifurcated the trial into a liability phase and a damages phase,

issued a partial judgment on December 23, 1997 (Petition

App. C, pp. 9a-55a, herein the “Partial Judgment’) and found

6

as a matter of Puerto Rico law a contract had been perfected

between NYDS and Respondents which protected

Respondents in the event of a sale by NYDS. The damages

phase of the case was set for the month of May, 1997.

As listed above, Petitioner filed several proceedings to

seek to overturn the Partial Judgment, commencing with a

request for review at the next appellate level, the Circuit

Court of Appeals, San Juan Regional Circuit (herein the

“Appellate Court”). The Appellate Court issued a Judgment

on September 23, 1998 (Petition, App. B, pp. 2a-8a, herein

the “Appellate Court Judgment”) stating the facts, affirming

the lower court in all respects, and adopting by reference the

findings of the lower court.

Petitioner believed that the Appellate Court Judgment

did not comply with the regulations promulgated by the

Puerto Rico Supreme Court for the governance of

proceedings of the Appellate Court, specifically Rule 10(A)?

thereof, and sought reconsideration on that basis as well as

on the merits. The gist of Petitioner’s argument (apart from

2. Rule 10(A) reads as follows:

Rule 10. Decision on the merits

(A) The corresponding panel of the Circuit Court

of Appeals shall resolve the writs submitted for its

consideration through a resolution or judgment, which

shall include a statement of facts and an exposition and

analysis of the issues raised.

Rule 10(A) of the Regulations for the Puerto Rico Circuit Court of

Appeals, promulgated by the Supreme Court of Puerto Rico,

effective May 1, 1996, T4. L.P.R.A. Ap. XXII-A R.10.

7

its attempt to relitigate the facts found below) is that the

Appellate Court is obliged, by Rule 10(A) to issue compiete

findings of fact and conclusions of law of its own, not relying

upon those of the lower court, no matter how proper and

accurate they may be. The Appellate Court denied the request

for reconsideration, saying that:

... Contrary to the allegations of the petitioner,

in our Judgment of September 23, 1998, we

clearly stated that, having examined the alleged

errors and having analyzed the bases for the

decision of the Court of First Instance “this Court

accepts and adopts as its own said conclusions

of law.” (See Judgment of September 23, 1998,

Part Il, First paragraph, emphasis supplied). The

findings regarding the relationship between the

corporation named Almacenes Rodriguez Inc. and

E. Rodriguez & Sons, Inc., as well as those

concerning the absence of assignment of rights,

were abundantly supported in findings of fact 1-

7 and at pages 35-39 of the judgment of the

enlightened court of instance, which we expressly

adopt.

(Opposition, App. A, infra, pp. la-2a).

Petitioner then filed a writ of certiorari to the Puerto

Rico Supreme Court (Opinions Below, supra, No. 5), which

was summarily denied by that Court without opinion

(Opinions Below, supra, No. 6). Not satisfied with this

denial, Petitioner sought two more reconsiderations, until

finally the Puerto Rico Supreme Court ordered them to abide

by the result (Opinions Below, supra, Nos. 7-10).

8

Petitioner next shifted its battleground to requesting of

the Puerto Rico Supreme Court that it retain the mandate.

Three separate motions to that effect were filed, both before

and after the Petition was filed in this court, to no avail

(Opinions Below, supra, Nos. 11-15), and the Mandate was

returned to the lower court (Opinions Below, supra, No. 16).

At a status conference held on November 30, 1999, the

lower court reset the case for trial in April, 2000. Thus,

proceedings in this case are continuing pending resolution

of this Petition.

SUMMARY OF ARGUMENT

This Honorable Court lacks jurisdiction over this cause

because the lower court Judgment is interlocutory.

Even if properly before this Court, the Petition should

be dismissed because Due Process of Law was given to

Petitioner by the Appellate Court Judgment. Due Process

does not require any particular kind or amount of process.

Even if, by its enactment, Rule 10(A) gives more rights

to Petitioner, and becomes incorporated into Fourteenth

Amendment Due Process, Rule 10(A) does not require that

the Appellate Court write a complete opinion in each case.

The requirement is that sufficient analysis be performed, and

sufficient record be reviewed to enable the Puerto Rico

Supreme Court, on appeal or certiorari from the findings of

the Appellate Court, to carry out its appellate duties.

Puerto Rico cases cited by Petitioner are different,

because in those cases, there was no opinion of any kind,

there was no record obtained, and no record, therefore, from

which the claimant could appeal.

9

Finally, in any event, because of the great administrative

difficulty of what Petitioner proposes, namely that all State

rules creating a procedure not otherwise required by Federal

Due Process give a right to certiorari in this Court, the result

would not be capable of effective administration.

REASONS FOR DENYING THE WRIT

A. THIS COURT LACKS JURISDICTION OVER

THIS CONTROVERSY BECAUSE IT IS NOT A

FINAL JUDGMENT.

The applicable jurisdiction basis is supplied by 28 U.S.C.

§ 1258, which, in pertinent part, reads as follows:

“Final judgments or decrees rendered by the Supreme Court

of the Commonwealth of Puerto Rico may be reviewed by

this Supreme Court by writ of Certiorari . . .” The operative

words are “final judgments.”

The rule is the same as to States. Only final judgments

or decrees rendered by the highest court of a State in which

a decision could be had, may be reviewed. 28 U.S.C. § 1257.

See Jefferson v. City of Tarrant, 522 U.S. 75, 118 S. Ct.

481, 139 L. Ed. 2d 433 (1997), interpreting similar language

in 28 U.S.C. § 1257. In Jefferson v. Tarrant, certain federal

issues were certified to the Supreme Court of Alabama, which

decided them adversely to plaintiff, and remanded for further

proceedings. It was clear that the proceedings on remand

would include a trial on the merits of the state-law claims,

and when the entire case is resolved the Supreme Court could

examine the merits of the federal Claims, on certiorari from

the final judgment. Interpreting Section 1257(a), this Court

stated:

10

To be reviewable by this Court, a state-court

judgment must be final “in two senses: it must be

subject to no further review or correction in any

other state tribunal; it must also be final as an

effective determination of the litigation and not

of merely interlocutory or intermediate steps

therein. It must be the final word ofa final Court”

(citations omitted).

Jefferson v. City of Tarrant, supra, at 118 S. Ct. 485-486.

Distinguishing Cox Broadcasting Corp. v. Cohn, 420

U.S. 469, 95 S. Ct. 1029, 43 L. Ed. 2d 328 (1975), on the

Tarrant facts, this Court concluded:

This case fits within no exceptional category. It

presents the typical situation in which the state

courts have resolved some but not all of the

petitioners’ claims. Our jurisdiction therefore

founders on the rule that a state-court decision is

not final unless and until it has effectively

determined the entire litigation.

Id. at 118 S. Ct. 487.

The fact that review of an interlocutory decision of the

lower court is denied does not convert it into a final judgment

or decree. Camaleglo v. Dorado Wings, 118 D.P.R. 20, 27

(1986). In other words, the Court of Appeals and the Supreme

Court of Puerto Rico, having denied further review does not

convert the case into a final one. The decision is interlocutory

because it does not dispose of any complete claim between

the parties, nor does it resolve the entire controversy in favor

or against any party. It is partial and interlocutory when it

ja 2h PRG ee, BO Aa

11

decides responsibility. First Federal Savings Bank v. Carlos

Nazario Gonzdlez, 95 CDT 102 (1995).

In First Federal v. Nazario, the plaintiff sought to

foreclose on a mortgage credit. Under Puerto Rico law, this

is a personal obligation and a lien on the real estate. The

lower court concluded the mortgage was defectively created,

and issued a final partial judgment to that effect. After a

trial on the merits, the judge concluded that it could not

reverse its conclusion that the mortgage had been defectively

created, even though he had concluded that he was mistaken

on that point, and granted judgment for plaintiff on the

personal obligation. Plaintiff appealed this decision to the

Puerto Rico Supreme Court, which held that since the first

partial judgment did not dispose of the “claim,” it was not a

final adjudication on any issue. The Court stated:

The respondent spouses are owners of the

mortgaged property and personal debtors at the

same time. Consequently, both actions, that is to

Say the real [estate] and the personal ones, are

commingled in the ordinary mortgage suit.

It results from our discussion that the partial

judgment issued by the court the 27" of August

of 1990 did not constitute a final adjudication for

purposes of Rule 43.5 of the Rules of Civil

Procedure, [the Puerto Rico equivalent of Federal

Rule 54(b)- ed] since the same did not dispose in

a complete manner of the only claim made in the

complaint filed in this case. (Footnote omitted).

In reality, we find ourselves confronting an

interlocutory resolution of the court to which the

term provided by Rule 53.1(b) for the review of

judgments is not applicable.

12

Consequently, First Federal did not have any

obligation to recur to us by the corresponding

request for review until the totality of the case

was concluded. (Citations omitted). Having

recurred on time from the final judgment which

totally adjudged the claim filed in the complaint,

we have jurisdiction to review that resolved by

the lower court in its mis-denominated partial

judgment of August 27, 1990.

First Federal Savings Bank v. Carlos Nazario Gonzalez,

95 CDT 102 (1995), at pp. 4-5 (translation ours).

The courts of Puerto Rico have determined that in a

bifurcated case, where liability is first tried, and then there

is to be a separate trial on damages, judgment in that case is

not final until the trial on damages is concluded. Dolphin v.

Ryder, 127 D.P.R. 869, 875, n.2. Camaleglo v. Dorado

Wings, Inc., supra, at 118 D.P.R. 26. Thus, in our case, the

determination of liability is not a final resolution of any claim

that Respondents have against Petitioner. What will finally

resolve this controversy is a money judgment issued by the

lower court after a trial on damages.

Although Respondents believe the above argument is

conclusive, we will now pass to discuss the merits of the

Petition. In the rest of Respondents’ Opposition to the

issuance of the Writ in this case, it will be assumed that this

Court has leaped the hurdle of lack of jurisdiction and will

deal with the merits of Petitioner’s Petition.

13

B. RESPONDENTS RECOGNIZE THAT THIS

COURT HAS CONSISTENTLY HELD SOME

FORM OF A HEARING IS REQUIRED BEFORE

AN INDIVIDUAL CAN BE DEPRIVED OFA

PROPERTY INTEREST, BUT THE FORM OF THE

HEARING IS VARIABLE.

This Honorable Supreme Court “consistently has held

that some form of hearing is required before an individual is

finally deprived of a property interest.” Mathews v. Eldridge,

424U.S. 319, 333, 96 S. Ct. 893, 902, 47 L. Ed. 2d 18 (1976);

accord Wolff v. McDonnell, 418 U.S. 539, 557-58, 94 S. Ct.

2963, 2975, 41 L. Ed. 2d 935 (1974). Perfunctory gestures

will not suffice. At bedrock, “[t]he fundamental requirement

of due process is the opportunity to be heard at a meaningful

time and in a meaningful manner.” Mathews, 424 U.S. at

333, 96 S. Ct. at 902 (citation and internal quotation marks

omitted).

The Court has not forged a boilerplate standard for

determining what process is due in all circumstances, but,

instead, has articulated three areas of particular importance.

First, the private interest that will be affected by the official

action; second, the risk of an erroneous deprivation of such

interest through the procedures used, and the probable value,

if any, of additional or substitute procedural safeguards; and

finally, the Government’s interest, including the function

involved and the fiscal and administrative burdens that the

additional or substitute procedural requirement would entail.

Id. at 335, 96 S. Ct. at 903; see also Connecticut v. Doehr,

501 U.S. 1, 111 S. Ct. 2105, 2112, 115 L. Ea. 2d 1 (1991);

Reardon v. United States, 947 F.2d 1509, 1518 (1*Cir. 1991)

(en banc). This Court’s language in Mathews explicates what

is essentially a constitutional balancing test.

14

In many, if not most, instances, due process does not

require a full-scale trial, or even a hearing strictly conforming

to the rules of evidence. See Mathews, 424 U.S. at 348, 96

S. Ct. at 909; Doyle v. Secretary of HHS, 848 F.2d 296, 301

(1* Cir. 1988). Due process is malleable, calling “for such

procedural protections as the particular situation demands.”

Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593,

2600, 33 L. Ed. 2d 484 (1972). A court may hand-tailor

procedures to account for the nature of the affected interests

and the circumstances of the threatened deprivation.

See Neron v. Tierney, 841 F.2d 1197, 1201 (1* Cir. 1988),

cert. denied, 488 U.S. 832, 109 S. Ct. 90, 102 L. Ed. 2d 66

(1988). “As the rubric itself implies, ‘procedural due process’

is simply ‘a guarantee of fair procedure.’ ” Amsden v. Moran,

904 F.2d 748, 753 (1* Cir. 1990) (quoting Zinermon v. Burch,

494 U.S. 113, 125, 110 S. Ct. 975, 983, 108 L. Ed. 2d 100

(1990)); see also Newman v. Burgin, 930 F.2d 955, 961

(1* Cir. 1991). Hence, courts will review cases involving

adversarial hearings to determine whether, under the specific

facts and circumstances of a given situation, the affected

individual has had a fundamentally fair chance to present

his or her side of the story. Gorman v. University of R.1.,

837 F.2d 7, 14 (1* Cir. 1988).

C. THE PROCESS HERE AFFORDED WAS FAIR.

The question thus becomes, did the Petitioner receive a

fundamentally fair chance to present its side of the story. In

Mathews, supra, there is a weighing of three factors: (i) the

private interest; (ii) the risk of error inherent in what

occurred; and (iii) the public interest. The Petition in this

case does not add up when analyzed using these factors.

The private interest. If this Court determines that the

partial final judgment entered was not interlocutory, then,

15

and only on that assumption, Respondents do not contest

that a private property interest is involved, since the

determination of liability by the lower court, affirmed by

the Appellate Court and the Puerto Rico Supreme Court, if

not interlocutory, will lead to a trial on the question of the

amount of the damages only. If final, we agree that the issue

of liability will be finally resolved in favor of Respondents

if the Petition is denied, and that is a property interest

protected by the Fourteenth Amendment.

Risk of error. This is not a case where the Appellate

Court misconstrued any issue of fact or law that rises to an

impairment of any Constitutional right of Petitioner . In fact,

the Constitutional violation alleged is that, instead of copying

verbatim the lower court’s decision in all of its parts, the

Appellate Court simply said, after reviewing the errors

alleged by Petitioner in its brief, and after analyzing the legal

bases which the lower court used to arrive at its conclusions,

that it accepted and adopted as its own the legal analysis.

Does this shorthand method mean that there is a greater risk

of error when a court considers an argument so specious that

it does not even discuss it? The mere fact that a court does

not address all legal arguments propounded dees not mean

that due process is not being afforded. All courts consider

themselves free to ignore, without comment, arguments

raised which, in their opinion, do not merit discussion.

See Yvonne Gil de Rebollo v. Miami Heat Associations, Inc.,

137 F.3d 56 (1* Cir. 1998): “To conclude, we find the parties’

remaining arguments and claimed errors to be without merit

and unworthy of extended discussion.”

Rule 10(A) and Federal Due Process do not require an

appellate court wishing to adopt the logic and opinion of the

lower court, to rewrite the lower court opinion in order to

16

afford due process. It suffices to clearly establish that said

decision is being adopted by reference. The Appellate Court’s

denial of Petitioner’s appeal was on the merits, and was not

a summary denial — no appellate court, satisfied with the

opinion and logic of the court below can be forbidden from

adopting as its own the decision of the lower court.

The Public Interest. The entire appellate system in

Puerto Rico, as stated by Petitioner, at p. 13 of the Petition,

was designed to give a level of appeal to litigants not

previously available. Petitioner was not deprived of due

process — it lost on the merits of its claim, and all subsequent

appellate proceedings validated the lower courts factual

determination of liability.

The trier of fact is the lower court. The Appellate Court

is not a court to try the case de novo. Any court exercising

appellate review must give deference to the findings of the

trier of fact. Not having trial by jury in civil cases in Puerto

Rico, the lower court is both the judge and the trier of fact.

Rule 10(A) is designed to allow three judges to review

important decisions of the lower court to insure that the single

judge below has properly received relevant evidence and has

decided thereon in a proper manner. It is the process of

review, not the parroting of the reasoning of the lower court,

that affords due process.

The United States Supreme Court should defer to the

Puerto Rico Supreme Court in its interpretation of Rule

10(A), as a matter of comity. To do otherwise is to convert

the United States Supreme Court into a court of last resort

on every interlocutory decision. It should be remembered,

that in Puerto Rico, there is no “final judgment” rule.

All orders are susceptible of review, by certiorari. Asociacién

17

de Propietarios v. Santa Barbara Co., 112 D.P.R. 33 (1982).

To permit review of the adequacy of the Appellate Court

decision in Puerto Rico will not serve the interests of Due

Process, but instead, will further congest the appellate

process, and promote trial by filibuster, as in this case. To

rule otherwise is to make every motion denied in the lower

court of Puerto Rico eventually subject to certiorari in the

United States Supreme Court.

D. HAD AN INJUSTICE OCCURRED, THIS COURT

COULD HAVE REVIEWED, ON CERTIORARI,

THE LOWER COURT’S DECISION, BY

ANALOGY TO HOW THE STATE APPEALS ARE

TAKEN.

Even assuming, which is not the case, that the Appellate

Court had not reviewed the matter, but had merely denied

review, and noting that the Puerto Rico Supreme Court also

denied review, if this partial judgment on liability were a

final partial judgment, which Respondents contest, it would

appear that the same logic of 28 U.S.C. § 1257 should be

applied to 28 U.S.C. § 1258, and this Court should be able

to review the decision of the lower court, which is fully

capable of being analyzed because it is a complete review of

the facts and the law. If so construed, the fact that the

Appellate Court did not render a written opinion would not

imply lack of due process. See IBEC y. Blanco Lugo, 267

F.2d 263, 265 (1* Cir. 1959).

If § 1258 were to be interpreted, as § 1257 specifically

provides, namely to permit petitions from the “. . . highest

court in which a decision could be had... ,” then Rule 10(A)

would not raise any issue of denial of due process. Regardless

whether Rule 10(A) existed or not, if § 1258 were interpreted

18

like § 1257, and the Appellate Court and the Puerto Rico

Supreme Court had both succinctly issued a denial

(“no ha lugar,”) such action would not preclude review of

the Superior Court’s decision. When a state supreme court

exercises its discretion (whether vested by statute or rule) to

decline to review a judgment of a lower state court, the

judgment of that lower state court is then reviewable by the

United States Supreme Court on certiorari pursuant to

28 U.S.C. § 1257.? See, e.g., Abernathy v. Alabama, 380 U.S.

447 (1965) (certiorari to the Court of Appeals of Alabama).

Moreover, in the unusual situation in which no appellate

court has jurisdiction to review the trial court’s judgment,

the writ of certiorari of the United States Supreme Court

runs to that trial court. See, e.g., Thompson v. City of

Louisville, 362 U.S. 199, 202-03 (1960) (certiorari to the

Police Court of Louisville, Kentucky).

Thus, from the point of view of having recourse, if

§ 1258 were interpreted like § 1257, Rule 10(A) does not

3. Said Statute reads, in pertinent part:

(a) Final judgments or decrees rendered by the highest

court of a State in which a decision could be had, may

be reviewed by the Supreme Court by writ of certiorari

where the validity of a treaty or statute of the United

States is drawn in question or where the validity of a

statute of any State is drawn in question on the ground

of its being repugnant to the Censtitution, treaties, or

laws of the United States, or where any title, right,

privilege, or immunity is specially set up or claimed

under the Constitution or the treaties or statutes of, or

any commission held or authority exercised under, the

United States. (Emphasis supplied.)

28 U.S.C. § 1257.

19

add or detract from Petitioner’s right to recur on appeal to

this Court. The only problem Petitioner has is that without

the argument that there is a Federal Due Process violation in

the manner in which the Appellate Court summarily

dismissed its request for review, Petitioner has nothing that

would allow it to invoke the jurisdiction of this Court. Thus,

Rule 10(A) is being used by Petitioner as a bootstrap to obtain

another level of review on the merits.

E. THE LOCAL CASES INTERPRETING RULE

10(A) DO NOT APPLY BECAUSE IN THIS CASE

THE APPELLATE COURT IN FACT DID

RENDER A DECISION.

The case of Maldonado Bermudez v. Nilsa Maldonado,

96 JTS 86 (P.R. 1996) is not similar to our facts. It appears

that the Appellate Court did not review the proof, either by

a transcript or a stipulated narrative exposition thereof in

said case. It did not perform any evaluation of the findings

of fact or of law of the lower court, nor did it adopt the

reasoning of the court below, as in our case. The type of

review that the Supreme Court wants, according to that

decision, is sufficient review so that review of the case is

possible if it comes before the Supreme Court. /d. at p. 1252

JTS.

The case of Departamento de la Familia y. Shrivers

Otero, 98 JTS 46 at p. 828 (P.R. 1998), was a case where

foster parents appealed to the Court of Appeals because of

their dissatisfaction in having the children returned to their

mother, a putative drug addict. The Appellate Court did not

examine the issues on appeal. It did not ask for a stipulated

or narrative summary of the testimony below. There was no

transcript. Instead, it remanded the matter to Family Court

20

for another hearing. The Supreme Court ruled that before it

did so, it had to examine the legal issues involved. Having

failed to examine the issues, the record was bereft of matters

dealing with the sufficiency of proof and there was no

weighing of the evidence. Under those circumstances, it was

impossible for the Supreme Court of Puerto Rico to evaluate

the case on its merits, and the case was returned to the

Appellate Court for decision. /d. at 833.

In our case, the Appellate Court had before it a stipulated

narrative exposition of the proof presented to the lower court.,

which, contrary to Shrivers Otero or Maldonado Bermudez,

placed both the Appellate Court and the Supreme Court of

Puerto Rico in a position to review what had occurred below.

It is for this reason that the Supreme Court did not require

that the Appellate Court write a rehash of the lower court

opinion, nor does it specify how many pages such an opinion

should have, nor does it say that every specious argument

not deserving of comment must be entertained. All the

Supreme Court requires is that the Appellate Court do its

job, review the evidence offered below, state the facts,

examine the issues, and discuss and analyze the same. How

incorporation by reference of a properly reasoned opinion

which in the Petition took up 47 pages of the Appendix, can

deny due process not only escapes reason but borders on the

Charles Dickens School of Law, where generation after

generation of attorneys work on the same case ad infinitum.

In this case, the Puerto Rico Supreme Court was able to

look at the entire record. It looked at the work of the

Appellate Court, and it looked at the work of the lower court,

and found that it complied with its understanding of the

working of the judicial process in its courts, issuing the most

perfunctory of its denials: “no ha lugar.” The Supreme Court

21

of Puerto Rico was aware of its findings in both Shrivers

Otero and Maldonado Bermudez, and obviously, did not

believe that the sort of errors it found in those cases were

present in this one.

F. WHAT PETITIONER SEEKS HERE IS A REVIEW

DE NOVO OF THE FACTS AND THE LAW IN

THIS CASE.

Petitioner, at p. 16 of its Petition says, “The Circuit Court

of Appeals included no independent discussion or analysis

of the legal issues involved in this case, wholly failing to

address any of the many legal errors that Petitioner raised in

its appeals papers.” Yet, at p. 17 of the Petition, it does admit

the Appellate Court did make its own statement of the facts

found below (see Appendix B, of Petition, pp. 2a-7a,

inclusive), did review the appellate brief with the errors

therein alleged to have been committed, did review the lower

court’s decision, and, adopted the same because it was in

full agreement therewith. It is hard to see how the Supreme

Court of the United States can draw a different bright line

for what Rule 10(A) requires of the Puerto Rico Appellate

Court different from that of the Puerto Rico Supreme Court

without risking a complete change in the nature of its daily

calendar.

Petitioner also claims the following arguments were not

dealt with, or were dealt with incorrectly by the Appellate

Court (See pp. 5-6 of Petition):

1. Despite the “overwhelming” evidence to the

contrary, NYDS and ARI had formed a contract.

Petitioner App. at 38a, 48a.

2. NYDS was liable to ARI for breach of contract.

Petitioner App. at 55a.

22

3. The lower court considered ERSI and ARI as one

and the same for purposes of this suit, despite being

separate in some respects, including being separate

corporate entities. App. 50a.

It is of the nature of the judicial process that the lower court

is the trier of the facts. The lower court weighs “overwhelming”

evidence, filters it through its good sense, hears witnesses,

weighs credibility, and comes to a conclusion. This is what the

lower court did at the precise places cited by the Petitioner in

its brief. What Petitioner wants is another trial. It is not the

appellate process of Puerto Rico that is in issue. It is that

Petitioner lost on questions of credibility, and just because the

Appellate Court chose not to rehash all the findings of fact, but

rather examined the ones it considered germane (Petitioner App.

at 3a-7a), and just because the Appellate Court chose not to

recapitulate the questions of Puerto Rico law, all of which were

accepted and adopted as its own by the Appellate Court,

Petitioner somehow feels it has been deprived of due process.

The fact is that Petitioner has not been deprived of anything

other than its opportunity to present the evidentiary side of the

case a second time, a matter which is not the function of the

Appellate Court, and which under the guise of an alleged lack

of due process is a bald attempt to get a second bite at the apple

before a trier of fact. Facts found below are usually upheld unless

they are clearly erroneous. Bose Corp. v. Consumers’ Union of

the United States, 466 U.S. 485, 497-501, 104S. Ct. 1949, 1957-

60, 80 L. Ed. 2d 502 (1984). We are not dealing with a Petitioner

deprived of due process. We are dealing with a Petitioner that

cannot accept the results of the judicial process when they are

not in its favor.

Had the Petitioner claimed bias, passion, partiality, or

prejudice on the part of the lower court, and had these

Ee eEEOEOEOEeeeeeer rrr ron

23

arguments been ignored, perhaps it could have claimed a

lack of due process. But, to rehash the arguments made to

the lower court and to offer the same testimony (without the

benefit of hearing witnesses and weighing their credibility)

to an Appellate Court which rejects the same for the same

reasons it was rejected below, is not a denial of due process.

It is the confirmation by an appellate tribunal of the findings

of fact and conclusions of law of the lower court, an event

that occurs every day, and which was given the short shrift

that it deserved: a summary dismissal by the Appellate Court,

and a “no ha lugar” from the Puerto Rico Supreme Court,

not once, but three times.*

G. EVEN IF THERE WAS A FAILURE BY THE

APPELLATE COURT TO GIVE NEW REASONS

FOR ITS AFFIRMANCE OF THE LOWER

COURT, THIS FAILURE DOES NOT RISE TO

THE LEVEL OF A FEDERAL DUE PROCESS

OBLIGATION, BECAUSE TO DO SO PERMITS

ALL APPEALS TO BECOME ALLEGED

DEPRIVATIONS OF FEDERAL DUE PROCESS.

Petitioner, at pp. 20-27 of the Petition claims there is a

conflict between the Ninth and Tenth Circuits and the Fifth

and Sixth Circuits whether there is a Federal Due Process

4. It is germane to point out that on October 29, 1999, the

Puerto Rico Supreme Court refused to hold the mandate pending

the appeal in this case, and proceedings on the damages portion of

this case are continuing in the Superior Court of Puerto Rico. These

actions, coupled with the three denials of Petitioner’s requests for

review by the Puerto Rico Supreme Court (Petitioner App. at 56a,

57a). are a clear signal that the Puerto Rico Supreme Court is

convinced the Appellate Court acted correctly, and is satisfied that,

given the case it has, Petitioner has received the justice it deserves.

24

claim available to Petitioner, even on its best facts, namely

that it has been deprived of a property right by the process

employed by the Appellate Court, and the failure to comply

fully with Rule 10(A). The cases in the Ninth and Tenth

Circuits, however, both concluded that even though petitioner

had been deprived of a property right protected by due

process by the failure to follow the procedures, on the merits

in both cases, the actions of the school bodies involved were

found to have a rational basis, and were upheld. Similarly in

this case, this court can uphold the principle that due process

requires Puerto Rico appellate courts to follow Rule 10(A)

to the letter and render a complete opinion in every case, but

can also affirm the actions of the Supreme Court and the

Appellate Court, and deny certiorari because as a matter of

fact there was no due process violation, because whatever

property right the Petitioner had was lost due to the lack of

merit of its claim not to a denial of Due Process required by

the Fourteenth Amendment.

As to the contrary position taken by the Fifth and Sixth

Circuits, it has best been set out in Levine v. Torvik, 986

F.2d 1506, 1515 (6" Cir. 1993), cert. denied, 509 U.S.907

(1993):

A state cannot be said to have a federal due

process obligation to follow all of its procedures;

such a system would result in the

constitutionalizing of every state rule, and would

not be administrable.

25

H. OTHER DUE PROCESS CASES GIVE NO

SUPPORT TO PETITIONER’S REQUEST.

Petitioner, at p. 20, compares its situation to that of

Logan, an employee who under the Illinois Fair Employment

Practices Act had a right to a hearing within 120 days of

filing his complaint. Logan received no hearing at all, and

this Court held that to deprive him of this right was a violation

of due process. Logan v. Zimmerman Brush Co., 455 U.S.

422 (1982). Here, Petitioner received a hearing. Petitioner

just didn’t like the result.

Prisoner liberty cases show the difficulty in

administration of a rule that imports into due process a state

regulation which may affect fundamental ri ghts to life, liberty

and property. In Hewitt v. Helms, 459 U.S. 460, 103 S. Ct.

864, 74 L. Ed. 2d 675 (1983) this Court made it clear that in

criminal liberty cases, where the liberty of the inmate is

involved, if there is a State rule or regulation that established

procedures for confining an inmate to administrative

segregation, some form of due process is required. Still, even

in this context, an informal, nonadversarial hearing was held

sufficient.

This holding made courts interpreting Hewitt look to the

regulation and ask whether the rule was mandatory or

precatory, and the sort of “protections” afforded began to

become ridiculous: “sack” versus “tray” lunches, playing the

state lottery, attending an ex-stepfather’s funeral, or the limits

of travel when on prison furlough. Sandin v. Conner, 515

U.S. 472, 500, 115 S. Ct. 2293, 2308, 132 L. Ed. 2d 418

(1995).

Finally, in Sandin v. Conner, this Court rejected Hewitt

insofar as its methodology was concerned. No longer would

26

the test be whether the State statute was mandatory or

precatory, but rather that the interests protected would be

“.. . generally limited to freedom from restraint which, while

not exceeding the sentence in such an unexpected manner as

to give rise to protection by the Due Process Clause of its

own force, . . . nonetheless imposes atypical and significant

hardship on the inmate in relation to the ordinary incidents

of prison life.” Conner, supra, at 515 U.S. 484. Why did

this Honorable Court abandon the Hewitt approach?

Basically for two reasons: First, that it creates disincentives

for States to codify prison administration, and create guides

for uniform treatment of prisoners, and second, because the

Hewitt approach “. . . has led to the involvement of federal

courts in the day-to-day management of prisons, often

squandering judicial resources with little offsetting benefit

to anyone.” Conner, supra, at 515 U.S. 482. This, we

respectfully urge on this Honorable Court, is what will occur

if the Pandora’s box of Rule 10(A) is opened.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be denied.

Respectfully submitted,

FEDERICO CALAF-LEGRAND EDWARD M. BorGEs

NELSON RIVERA-CABRERA Counsel of Record

REICHARD & CALAF, PSC Borces LAw CENTER, P.S.C.

P.O. Box 9022946 Union Plaza Bldg. PH A

San Juan, PR 00902-2946 416 Ponce de Leén Avenue

(787) 725-1004 San Juan, PR 00918

(787) 753-1934

Attorneys for Respondents

APPENDIX

la

APPENDIX — DECISION OF THE CIRCUIT COURT

OF APPEALS, SAN JUAN REGIONAL CIRCUIT

DATED FEBRUARY 9, 1999

COMMONWEALTH OF PUERTO RICO

IN THE CIRCUIT COURT OF APPEALS

SAN JUAN REGIONAL CIRCUIT

KLAN9700081

(Appeal from the Court of First Instance, San Juan

Superior Section) Civil No. KPE 94-0345 (802)

ALMACENES RODRIGUEZ, INC. AND

E. RODRIGUEZ & SONS, INC.

Appellees

¥.

NEW YORK DEPARTMENT STORES

DE PUERTO RICO, INC.

Appellant

Panel comprised of its president, J udge Fiol Matta, Judge

Rodriguez de Oronoz, and Judge Gierbolini.

RESOLUTION

In San Juan, Puerto Rico, this 9% day of February, 1999.

Having examined the request for reconsideration dated

October 23, 1998, the same is DENIED. The request that we

2a

Appendix

reconsider does not add any element to that already

considered by this Court in its ruling. Contrary to the

allegations of the petitioner, in our Judgment of September

23, 1998, we clearly stated that, having examined the alleged

errors and having analyzed the bases for the decision of the

Court of First Instance, “this Court accepts and adopts as

its own said conclusions of law” (See Judgment of September

23, 1998, Part Il, first paragraph, emphasis supplied). The

findings regarding the relationship between the corporation

named Almacenes Rodriguez, Inc., and E. Rodriguez & Sons,

Inc., as well as those concerning the absence of assignment

of rights were amply supported in findings of fact 1-7, and

at pages 35-39 of the said judgment of the enlightened court

of first instance, which we expressly adopt.

It is thus agreed and ordered by this Court, and certified

by the Secretary-General.

s/s Aida Ileana Oquendo Graulau

Aida Ileana Oquendo Graulau

Secretary General