Opposition Brief — Roberts v. Wooton

ye Supreme Court, U.S. |

di, EIC ED

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No. 99-794 rs CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

DARRYL J. ROBERTS,

Petitioner,

V.

BEULAH B. WOOTON, ADMINISTRATRIX

OF THE ESTATE OF ROBERT O. WOOTON,

Respondent.

ON PETITION For Writ OF CERTIORARI

To THE SUPREME CourT OF APPEALS OF WEsT VIRGINIA

RESPONDENT'S BRIEF IN OPPOSITION

JosHua I. BARRETT, Esa. *

DiITRAPANO, BARRETT & DIPIERO, PLLC

604 VIRGINIA STREET EAST

CHARLESTON, WEST VIRGINIA 25301

(304) 342-0133

Counsel for Respondent

* Counsel of Record

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001

a sammie iii aa aaa aaa

TABLE OF CONTENTS

Absence Of Jurisdiction In This Court ............ |

Ce Siege a Gils ke baa bo |

Reasons For Denying The Writ ................ 3

EG OMB E EOL Or rc oN Se eee eka ks 6

NR ok ow as bok Whee Rea eees oie 8

TABLE OF AUTHORITIES

Cases

Cart v. Marcum,

188 W.Va. 241, 423 S.E.2d 644 (1992) ...... 5

Cox Broadcastin . v. Cohn,

420 U.S. 46D CGGFEE 5 5 6 0 hh 6 6 ees 1

Gaither v. City Hosp., Inc.,

487 S.E.2d 901 (W. Va. 1997) ......------ 5

Jefferson v. City of t *

$23 U.S. TB Glee a wo 6 cc es Fes eee 3

Logan v. Zimmerman B .

455 U.S. 420, 433-34 (1982) Te Pe eats eee 6

Market Street R. Co. v. Railroad Comm'n of Cal.,

324 U.S. 548, 65 S.Ct. 770, 89 L.Ed.

Viki: Seer ee a ek 4

Radio Station WOW, Inc. v. J

326 U.S. 120, 65 S.Ct. 1475, 89 L.Ed.

re ee ee 4

Other

28. U.S.C.8 UBS? .... ok aa a cn eee 3

28 U.S.C. 8 TBSMa) ccc ences sce setesees: 4

Rule 14(i) of the Rules of the Supreme Court of the

Unntnadd GUNNS. ww kok oa ie a 88 8 OR ee ee ee 1,3

il

Wright, Miller and Cooper, Federal Practice and

Procedure: Jurisdiction 2d. § 4009 ........

W. Va. Code § 55-1-12

“Sat de ek Ge oy Sig ee oe a ae Oe ee ee ae ee, ee

ill

ABSENCE OF JURISDICTION IN THIS COURT

This Court lacks jurisdiction to grant the Writ. The

decision of the West Virginia Supreme Court of Appeals

which is the subject of the Petition is a non-final order

remanding a case for factual development on an issue of state

law. Jurisdiction is improperly asserted, therefore, under 28

U.S.C.§ 1257 and Rule 14(i) of the Rules of this Court.

Sup.Ct.R.14(); Cox Broadcasting Corp. v. Cohn, 420 U.S.

469, 502-05 (1975). Petitioner never raised any federal

Constitutional Claim in the West Virginia Supreme Court of

Appeals, and its ruling was not a final one. Furthermore,

there is no substantial federal question presented.

STATEMENT OF THE CASE

In this civil action, Respondent asserts that stock

belonging to her husband rightfully belongs to her. After

Respondent’s husband's death, his stock was wrongfully

converted by Chester Roberts and Associated Cemetery

Estates, subsequently transferred to the Petitioner Darryl

Roberts, transformed into other assets upon the sale of the

corporation, and then finally transferred by Petitioner to two

trusts, the Darryl Roberts Trust and the Ann Roberts Trust

(both of which are subject to Petitioner’s control) into which

the assets can now be traced. The Opinion below reviewed a

decision by a trial court, the Circuit Court of Raleigh County,

West Virginia, directing judgment as a matter of law against

the Respondent on the ground that the statute of limitations

had run on her claims. The West Virginia Supreme Court of

Appeals, in a per curiam opinion, found that under the facts

presented, plaintiff was entitled to a jury determination of

when the statute of limitations accrued. The Court’s

rationale focused on the “discovery rule”, a rule of state law

discussed below:

[I]n the case sub judice, we must

determine whether the evidence presented by

the plaintiff was sufficient to create a question

of fact for the jury as to whether she was

entitled to the benefit of the discovery rule. In

other words, did the plaintiff offer evidence

from which a reasonable jury could conclude

that she did not know or had no reason to

know that her husband's stock had been

transferred prior to 1994.

After reviewing the record, we

conclude that the plaintiff did offer sufficient

evidence during the presentation of her case to

create a question of fact for the jury regarding

whether her claim was barred by the statute of

limitations. We disagree with the circuit

court's conclusion that because the plaintiff did

not receive dividends after her husband's

death, she had reason to know that something

had happened to the stock. The plaintiff

presented evidence indicating that she believed

the stock was being paid for with the dividends

and did not expect to collect them. More

importantly, the plaintiff presented evidence

that she received offers from the appellees to

purchase her husband's stock through the

1990s. The plaintiff maintains that those offers

gave her reason to believe that she still owned

the stock. She contends that once the appellees

claimed ownership of the stock in 1994, she

timely filed suit. Considering these facts in the

light most favorable to the plaintiff, we believe

that the jury should have been given the

opportunity to consider this evidence and

2

determine whether the plaintiff's claims are

barred by the statute of limitations. Pet. App.

B at 15a-16a.

At no point in the zppeal did the Petitioner assert that

his rights under the Due Process Clause were at issue.

Indeed, the Petition makes no mention of when the federal

questions sought to be reviewed were raised, the manner of

raising them and the way they were passed on in the courts

below as required by Rule 14(i) of the Rules of the United

States Supreme Court.

REASONS FOR DENYING THE WRIT

The obvious fatal flaw in the Petition is that it fails to

support jurisdiction under 28 U.S.C.§ 1257 because the

decision appealed from is not a “final judgment or decree”.

As this Court stated in Jefferson v. City of Tarrant, Ala., 522

U.S. 75 (1997).

From the earliest days of our judiciary,

Congress has vested in this Court authority to

review federal question decisions made by

state courts. For just as long, Congress has

limited that power to cases in which the State's

judgment is final. See Judiciary Act of 1789,

§ 25, 1 Stat. 85. The current statute regulating

our jurisdiction to review state-court decisions

provides:

"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

3

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 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."28 U.S.C. § 1257(a).

This provision establishes a firm final

judgment rule. 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 of a final court." Market Street R.

Co. v. Railroad Comm'n of Cal., 324 U.S.

548, 551, 65 S.Ct. 770, 773, 89 L.Ed. 1171

(1945). As we have recognized, the finality

rule "is not one of those technicalities to be

easily scorned. It is an important factor in the

smooth working of our federal system." Radio

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

124, 65 S.Ct. 1475, 1478, 89 L.Ed. 569

(1945).

Jefferson, 522 U.S. at 80-81.

The order from the West Virginia Supreme Court of

Appeals remanding the case for a new trial is not a “final

judgment”. See Wright, Miller and Cooper, Federal Practice

4

and Procedure: Jurisdiction 2d. § 4009, p. 159. Because

Petitioner will be free to assert, and may prevail on his statute

of limitations defense on remand to the Circuit Court of

Raleigh County, he cannot present a justiciable issue to this

Court.

A second fatal flaw in the Petition is that the supposed

federal constitutional issue was not presented to the West

Virginia Supreme Court of Appeals. Not only was no such

question presented in Petitioner’s “Response of Darryl

Roberts to Brief of Appellant”; Petitioner failed to cite a

single case from the federal system. See Resp. App. 1

Finally, the due process claim asserted is patently

meritless. Petitioner claims that the West Virginia Supreme

Court of Appeals violated due process by creating a new

exception to a legislatively created statute of limitations. This

is untrue. The statute of limitations relied upon does not

address when the cause of action accrues. See W. Va. Code

§ 55-1-12. It is therefore proper for the court and jury to

apply a well established, judicially created rule of state law

that controls this issue: “Generally a cause of action accrues

(i.e., the statute of limitations begins to run) when a tort

occurs; under the ‘discovery rule,’ the statute of limitations is

tolled until a claimant knows or by reasonable diligence

should know of the claim.' Syllabus Point 1,. ” Syllabus Point

1, Cart v. Marcum, 188 W.Va. 241, 423 S.E.2d 644 (1992).”

Syllabus Point 2, Gaither v. City Hosp., Inc., 487 S.E.2d 901

(W. Va..1997). The statute of limitations established by the

state legislature contravenes neither this language nor its

application in this case.

The Petitioner apparently urges that he was deprived

of due process because there was no evidence that Respondent

was prevented from discovering her claim. Although this

5

argument would not rise to a federal claim in any event,

Petitioner has misstated both the state law and the facts. In its

opinion in the instant matter, the Supreme Court of Appeals

noted that “there are some instances where the discovery rule

should not be applied because the nature of the wrong is such

that a plaintiff could not reasonably claim ignorance of the

existence of the cause of action”, Pet. App. B at 12a, and that

in those instances the plaintiff must make a strong showing

that the defendant did something to prevent the plaintiff from

knowing of the claim. Id.; accord Gaither v. City Hosp., Inc.,

487 S.E.2d at 907. But the court did not hold Respondent’s

case to be one of those “instances” and accordingly did not

decide the matter under this narrower formulation; rather, it

held a jury should decide whether the general discovery rule

saved Respondent’s claim: i.e., whether Respondent knew or

reasonably should have known of her claim at an earlier date.

Contrary to the assertions in the Petition, Respondent had, in

the courts below, presented facts to show why Respondent did

not know that the stock had been taken from her husband and

transferred to Petitioner and the West Virginia Supreme Court

of Appeals so found. Pet. App. B at 15a.

Finally, Petitioner’s due process rights have not been

denied because he will have an opportunity to present his

statute of limitations defense to the jury in any event. No

more than this is required: that defendant have a meaningful

opportunity to be heard before a deprivation of property takes

place. See, e.g., Logan v. Zimmerman Brush Co., 455 U.S.

420, 433-34 (1982).

CONCLUSION

This case is currently pending, upon issues of purely

state law, in the courts of the State of West Virginia.

Respondent respectfully submits that this Court has no

6

jurisdiction over such matters. Accordingly, the Petition for

the Writ of Certiorari should be denied.

/s/

Joshua I. Barrett, Esq.

DiTrapano, Barrett & DiPiero, PLLC

604 Virginia Street East

Charleston, West Virginia 25301

(304) 342-0133

APPENDIX 1

EXCERPT FROM THE RESPONSE

OF DARRYL J. ROBERTS TO

BRIEF OF APPELLANT

11/16/98

TABLE OF CONTENTS

TABLE OF AUTHORITIES ........0ccceeeees il

TABLE OF ABBREVIATIONS ............... ill

I. PROCEEDINGS IN THE COURT BELOW .... 1

ll. STATEMENT OF FACTS .. 1... ccc eveces 3

Pee PN hoe Seah swe ge fie ess 7

1. The Trial Court Was Correct in Granting the

Appellee’s Motion for D.<ected Verdict at the

Close of Appellant’s Evidence ............ om

2. Every Conceivable Statute of Limitations Had

Expired Prior to the Institution of This Action

RE mere ee en re Ne ee er a Be ee 10

3. The Appellant Failed to Establish a Prima

Facie Case Against Darryl Roberts ......... 14

Fel, SIE os SW eS POR ER 16

EXCERPT FROM THE RESPONSE

OF DARRYL J. ROBERTS TO

BRIEF OF APPELLANT

11/16/98

TABLE OF AUTHORITIES

CASES Page

Alkire v. First Nat'l Bank, 197 W. Va. 122, 475 S.E.2d

TY rd &

Black & White Cab Co. v. New York Indem. Co., 108 W.

Va. 93, 150 S.E. 521 7. We i)

Cart v. Marcum, 188 W. Va. 241, 423 S.E.2d 644 (199211

Chancellor v. Shannon, 200 W. Va. 1, 488 S.E.2d 1 (1997)

pc baeeeed ne 6.62402 eRe oe 10, 13

Gaither v. City Hosp.. Inc., 199 W. Va. 706, 487 S.E.2d

rr a i 10, 13

Harrison v. David, 197 W. Va. 651, 478 S.E.2d 104

TT i) = 10, 13

Pleasant v. Elk Run Coal Co., 199 W. Va. 629, 486 S.E.2d

Pleasant V. os

POR CSET. wc can snot ease ee ere 8, 14

Roberts v. Gale, 149 W. Va. 166, 139 S.E. 2d 272 (1964) .

ty dela seen ae ee Ss eee 7,14

Slack v. Kanawha County Hous., 188 W. Va. 144, 423

© F.2d S47 (1992). eee ces ccenreresseeeen® 13

Spitler v. Dean, 436 N.W.2d 308 (Wis. 1989) ... 13, 14

State ex rel. v. Blue Cross Blue Shield of W. Va., Inc. __

W. Va. __, 510 S.E.2d

NS a a 9

Vorholt v. One Valiey Bank, 201 W. Va. 480, 498 S.E.2d

£) ee Peng We as 4 ek os me. ii, 12, 13

STATUTES

me. Va. Code $4069 (1961)... 2. ee eee eee

W. Va. Code § 55-2-6 (1994)

ll

10