Opposition Brief — Cass v. Stephens

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Goan Conn, 0.8.

FILS D

"APR 28 2003

No. 02-983 —

In the

Supreme Court of the United States

FRANK CASS,

Petitioner,

¥,

PATRICIA LOVE STEPHENS, INDIVIDUALLY AND

AS TRUSTEE OF THE WALTER H. STEPHENS

TRUST, THE SSH TRUST, THE SUTTON ELIZABETH

STEPHENS IRREVOCABLE TRUST, and THE

HEATHER LOVE STEPHENS IRREVOCABLE TRUST,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE TEXAS SUPREME COURT

BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

TURNER, DAVIS & GERALD

John A. “Jad” Davis (Counsel of Record)

Brandy R. Manning

Attorneys for Respondents, Patricia

Love Stephens, et al.

400 W. Illinois, Suite 1400

Midland, TX 79701

(432) 687-0011

TABLE OF CONTENTS

WA CI oh i ka iv a eV we ves ow inebaccs 1

Sr IE iv ho She eee yk es ill

CONSTITUTIONAL AND STATUTORY PROVISIONS ......... V

Uae OP TH A so ek is he Bee vs hv ]

ey OI i oss a ss ya ws oa ee 4

SUMMARY OF ARGUMENT 2.2... 06. ccc ccccccccuviss 9

I. This Court has given adequate guidance to lower courts

regarding the constitutionality of punitive damages

awards. Because the Court of Appeals correctly stated

and applied Gore, the petition should be denied.... 9

Il. This Court has no jurisdiction over Cass’s argument that

Texas Rule of Appellate Procedure 47 violates due

process; thus, Cass’s petition should be denied. ... 9

SUE iia Se ee ea beeees 10

I. Under BMW y. Gore, the Texas Court of Appeals

affirmed a punitive damages award that was not grossly

CE es oo een ee eek eee 10

A. This Court has given more than adequate

guidance with respect to excessive

PUNNIVE GRAIN... osc ic cs cece es 1]

B. The Court of Appeals properly stated and

applied this Court’s decision in BMW vy.

fee rly wre re rea er ee 16

C. The Texas Court of Appeals properly

stated and applied this Court’s punitive

damages jurisprudence. ............... 22

Il. Cass’s second issue, that Texas Rule of Appellate

Procedure 47 denied him due process, is not justiciable.

OE re ee rere rene Si hers ER OS 23

A. Cass did not timely raise this issue. ...... 23

B. To the extent Petitioner complains that

unpublished opinions cannot be cited, his

MMAR EE tw 5 on ceeciaeess’ 24

C. To the extent that Cass’s complaint is the

precedential value of unpublished

opinions, Cass does not have standing .... 25

D. Petitioner’s real complaint is that the

Texas Supreme Court did not review this

COD oo ces eau bere eee 26

TABLE OF AUTHORITIES

FEDERAL CASES

BMW \v. Gore,

ee hl) 9-13, 15, 16, 22, 29

Flast v. Cohen,

RE, a 25

Lujan v. Defenders of Wildlife,

oS A. 25

Pacific Mut. Life Ins. Co. v. Haslip,

oD.) re 11, 13-15

State Farm Mut. Ins. Co. v. Campbell,

No. 01-1289 (U.S. April 7, 2003) .. 10-13, 15, 22, 29

TXO Prod. Corp. v. Alliance Resources Corp.,

509 U.S. 443 (1993). «22.00... 4,10, 11, 13-15, 23

United States Dept. of Treasury, Bureau of Alcohol,

Tobacco & Firearms v. Galioto,

DEF Ei POR II, o ive cece ven esseeusenns 24

TEXAS CASES

Cass v. Stephens,

2001 WL 28092 (Tex.App. - El Paso 2001,

I ts ee. eee ee 4, 16-21

ill

FEDERAL RULES

ee a ee sc oe oc We re OR tae Oe ea ee 22

TEXAS STATUTES AND RULES

Pe ne 4 bse os ee sae cea eee 27, 29

eS SN 8 ee re ere rts res 23

ke Sk rer re rer eee tor eee 23

pe OM OE > Ot Bere rae ... 9, 23-26, 28

pe Ae ok err re oy rere er Tee 3

CONSTITUTIONAL AND STATUTORY

PROVISIONS

Texas Rules of Appellate Procedure (Effective January 1, 2003):

47.4 Memorandum Opinions. If the issues are settled, the

court should write a brief memorandum opinion no longer than

necessary to advise the parties of the court’s decision and the

basic reasons for it. An opinion may not be designated a

memorandum opinion if the author of a concurrence or dissent

opposes that designation. An opinion must be designated a

memorandum opinion unless it does any of the following:

(a) establishes a new rule of law, alters or

modifies an existing rule, or applies an existing

rule to a novel fact situation likely to recur in

future cases;

(b) involves issues of constitutional law or

other legal issues important to the jurisprudence

of Texas;

(d) resolves an apparent conflict of authority.

47.7 Citation of Unpublished Opinions. Opinions not

designated for publication by the court of appeals under these or

prior rules have no precedential value but may be cited with the

notation, “(not designated for publication).”

Texas Rules of Appellate Procedure (Amended effective January

1, 2003):

47.3 Publication of Opinions.

(a) The initial decision. A majority of the

justices who participate in considering a

case must determine - before the opinion

is handed down - whether the opinion

meets the criteria stated in 47.4 for

publication. If those criteria are not met,

the opinion will be distributed only to the

persons specified in Rule 48, but a copy

may be furnished to any person on

request by that person.

(b) Notation on Opinions. A _ notation

stating “publish” or “do not publish”

must be made on each opinion.

whether to publish. Any party may

move the appellate court to reconsider its

decision regarding publication of an

opinion but the court of appeals must not

order any unpublished opinion to be

published after the Supreme Court or

Court of Criminal Appeals has acted on

any party’s petition for review, petition

for discretionary review, or other request

for relief.

(d) High-court order. The Supreme Court

or the Court of Criminal Appeals may, at

any time, order a court of appeals’

opinion published.

47.4 Standards for Publication. An opinion should be

published only if it does any of the following:

(a) establishes a new rule of law, alters or

modifies an existing rule, or applies an

existing rule to a novel fact situation

likely to recur in future cases;

(b) involves a legal issue of continuing public

interest;

(d) resolves an apparent conflict of authority.

47.7 Unpublished Opinions. Opinions not designated for

publication by the court of appeals have no precedential value

and must not be cited as authority by counsel or by a court.

Vii

STATEMENT OF THE CASE

This case is a textbook example of an abuse of the

system. Filed on November 6, 1986, its long procedural history

includes multiple mandamus actions,’ interlocutory appeals,”

weeks of discovery hearings,’ a six-week sanction hearing which

culminated in an award of sanctions,’ a two-week hearing on a

'Frank W. Cass & Cass Oil Co. v. Hon. Brock Jones, Judge, 112th Judicial

District Court, Cause No. 08-9000222-CV in the Court of Appeals for the Eighth

District of Texas at El Paso (sanctions); William G. Cass & Michael L. Cass v. Hon.

Brock Jones, Judge, 1 12th Judicial District Court, Cause No. 08-90-00223-CV in the

Court of Appeals for the Eighth District of Texas at El Paso (sanctions); Frank W.

Cass & Cass Oil Co. v. Hon. Brock Jones, Judge, 112th Judicial District Court,

Cause No. D-G105 in the Supreme Court of Texas (sanctions); William G. Cass &

Michael L. Cass v. Hon. Brock Jones, Judge, 112th Judicial District Court, Cause

No. D-0106 in the Supreme Court of Texas (sanctions); Frank W. Cass & Cass Oil

Co. v. Hon. Brock Jones, Judge, 112th Judicial District Court, Cause No. 08-90-

00305-CV in the Court of Appeals for the Eighth District of Texas at El Paso

(severance); William G. Cass & Michael L. Cass v. Hon. Brock Jones, Judge, 112th

Judicial District Court, Cause No. 08-90-00296-CV in the Court of Appeals for the

Eighth District of Texas at El Paso (severance); Frank W. Cass & Cass Oil Co. v.

Hon. Brock Jones, Judge, | 12th Judicial District Court, Cause No. 08-90-00289-CV

in the Court of Appeals for the Eighth District of Texas at El Paso (sanctions);

William G. Cass & Michael L. Cass v. Hon. Brock Jones, Judge, 112th Judicial

District Court, Cause No. 08-90-00290-CV in the Court of Appeals for the Eighth

District of Texas at El Paso (sanctions); Frank W. Cass & Cass Oil Co. v. Hon. Brock

Jones, Judge, 1 12th Judicial District Court, Cause No. D-2107 in the Supreme Court

of Texas (sanctions); William G. Cass & Michael L. Cass v. Hon. Brock Jones, Judge,

112th Judicial District Court, Cause No. D-2108 in the Supreme Court of Texas

(sanctions).

Notice of Appeal (from Interlocutory Order Granting Temporary

Injunction), 1987 TR 92-93.

*XVI:181.

‘Order Imposing Sanctions, 1990 TR 749-54; CR:1:193-98; Memorandum

Opinion, CR:1:190-92.

motion to exclude or suppress evidence,’ numerous pretrial

motions including a motion to disqualify plaintiffs’ counsel,° a

motion to disqualify plaintiffs’ expert,’ and eight motions for

summary judgment.* Petitioner Frank W. Cass (Cass) changed

attorneys and law firms three times.’ Michael L. Cass'® changed

*XVI:183.

*Defendant's Motion to Disqualify Attorneys of Record, 1990 TR 439-44.

"Defendant's Motion to Disqualify Plaintiffs’ Expert Witness or

Alternatively, To Disqualify Plaintiffs’ Witness as a Sanction, CR:11:482-95.

*The Individual Defendants’ Motion for Partial Summary Judgment and

Supporting Brief, CR:1I:372-461; Defendants’ Motion for Summary Judgment as to

Limitations, CR:1]:462-78; Defendants’ Supplemental Brief on Alter Ego Claim,

CR:III:556-97; Defendants’ Motion for Summary Judgment as to Issue of

Unauthorized Expenditures, CR:III:716-28; Defendant's Motion for Summary

Judgment on the Issues of Field Supervision Fees, Revenue Distribution Fees, and Ad

Valorem Tax Services, CR: V: 1604-16; Defendants’ Motion for Summary Judgment

on the Issue of Fixed Rate Overhead, CR: V:1620; Defendants’ Motion for Summary

Judgment on the Issue of Affiliate Vendor Overcharges, CR:V:1650-71; Defendants’

Supplemental Motion for Summary Judgment as to Application of the Discovery Rule

and the Doctrine of Fraudulent Concealment; CR:V: 1672-1739; Defendants’ Motion

for Summary Judgment as to Exemplary Damages and Allegations of Tortious Injury,

CR:V:1740-48; Defendants’ Motion For Summary Judgment as to Limitations on

Specific Charges, CR:V:1749-65.

*Designation of Additional Attorneys of Record, 1990 TR 306-308; Motion

to Withdraw, CR:V1:2021-25; Order of Withdrawal, CR:V1:2026-27; Motion to

Appear as Attorney of Record for Purpose of Continuance Only, CR:V1:203638;

Notice of Entry of Appearance, CR: V1:2064-65.

'°Michaei is Cass’s son. He was a defendant at trial and appealed, along

with Cass, to the El Paso Court of Appeals and filed a petition for review, which the

Texas Supreme Court denied. He has not petitioned for writ of certiorari in this

Court.

attorneys four times.''’ Cass filed four Motions for

Continuance.'? Appellants sued Mrs. Stephens three times, her

experts, her attorneys, and her investigators in other forums."

Finally, the month-long jury trial began on May 28,

1997—almost eleven years after the case was filed. The jury

found in favor of Mrs. Stephens on most of her affirmative

claims and against Cass and his son, Mike Cass.'* The

Honorable Brock Jones entered his judgment on September 11, -

1997.'° Mrs. Stephens filed a written remittitur pursuant to

Texas Rule of Civil Procedure Rule 315.'° The Motions for

JNOV, New Trial or in the aiternative, Motion to Modify were

overruled. '’

"Designation of Additional Attorneys of Record, 1990 TR 306-308;

Motion to Withdraw, CR: V1:2021-25; Order of Withdrawal, CR: VI:2026-27; Motion

to Appear as Attorney of Record for Purpose of Continuance Only, CR: VI:2036-38;

Notice of Entry of Appearance, CR: V1:2064-65 1; Defendant Michael L. Cass' Notice

of Appeal, CR: VI:2269-70.

"Motion for Continuance, CR:11:364-71; Defendants' Second Motion for

Continuance, CR: VI:2015-18; Defendants’ Motion for Continuance, CR: VI:2029-35;

Defendants’ Motion for Continuance, CR:VI:2040-41; Defendants' Motion for

Continuance, CR:V1:2051-57.

BXV:104, 153-154; XXVI:23-25, 77-78.

Charge of the Court, CR: VI:2090-2129; Charge of the Court (Second

Phase), CR: VI:2130-37.

'SFinal Judgment, CR: V1:2182-92.

‘Written Remittitur, CR: V1:2264-66.

Order Overruling Defendants’ Motions for New Trial, CR:V1:2262-63.

(This order specifically addresses the remittitur.)

As remitted, the judgment against Cass is for actual

damages of $786,243.91, prejudgment interest of $919,1 54.47,

attorneys’ fees of $1,575,000.00 (contingent in part on appeals),

court costs of $18,155.55, and punitive damages of $2.5 million

(fraud) and $2.5 million (conversion).

Judge Jones also awarded $978,492.10 in sanctions

against Cass for abuse of discovery.'* Cass appealed, and the EI

Paso Court of Appeals affirmed the trial court in all respects.'?

Cass filed a motion for rehearing which was denied.- Cass then

filed a petition for review in the Texas Supreme Court, which

was denied. Cass then filed a motion for rehearing in the Texas

Supreme Court, which was also denied. F inally, sixteen years

after this case was initially filed, Cass has petitioned this Court

for writ of certiorari.

STATEMENT OF FACTS”

Respondent Patricia Love Stephens (“Mrs. Stephens’’) is

the widow of General Walter H. Stephens (“General Stephens”),

a retired Brigadier General in the U.S. Marine Corps. Their two

daughters, Heather and Sutton, are beneficiaries of the

Respondent Trusts.

In the late 1960s, Mr. Cass and General Stephens formed

a partnership to invest in oil and gas properties and successfully

'*Final Judgment, CR:VI:21, 82.

"Cass v. Stephens, 2001 WL 28092 (Tex.App. - El Paso 2001, pet. denied).

*°Because the jury found the facts in Mrs. Stephens’ favor and the Court of

Appeals affirmed those findings, it is appropriate for this Court to accept Mrs.

Stephens’ version of disputed facts. TXO Prod. Corp. v. Alliance Resources Corp.,

509 U.S. 443, 447 (1993).

drilled numerous wells. XVIII:75; XVI:98-99. General Stephens

and Mr. Cass were not only equal partners, but close friends.

XXI:26. Their families attended dinner parties together,

exchanged Christmas gifts, and "were just friends." XV:88.

In the mid-1970s, General Stephens’ health declined

considerably. He had multiple surgeries for a broken hip and a

broken back that left him almost unable to walk. XV:74-78. He

developed Pickwickian Syndrome, a medical condition that

caused him to sleep up to twenty hours a day. XV:79-81. These

illnesses and injuries left the General unable to meaningfully

participate in his business. XV:74-84.

Due in part to Cass's desire to bring his son Michael L.

Cass into the business, General Stephens and Cass terminated

their partnership by a written "Agreement to Terminate”

effective January 1, 1978. See XXII:13; PX 935.

Contemporaneously, by formal written ballot election, Cass

became the successor operator of all former Stephens & Cass

properties, including the sixty-eight oil and gas wells involved

in this suit (the "Stephens Wells"). XXI:143; VIII:48; PX 22.

General Stephens retained his ownership interest in the wells

and became a nonoperating working interest owner. XVI:108.

On November 14, 1983, Cass purchased certain

undeveloped leasehold acreage from General Stephens. PX:122-

130; XIII:142, 146, 150-153; XVI:24, 119; XX:31, 41. These

undrilled "locations" were on the same leases as the Stephens

Wells and were direct offsets to them. XVI:24. Cass then drilled

his own wells on the offset locations (“Cass Companion

Wells.”) XIII:133.

Cass and his son immediately undertook a course of

reprehensible conduct. Cass and his son took advantage of

General Stephens’ vulnerability and poor health and of Mts.

Stephens’ unfamiliarity with the business and her personal trust

in Cass. The concept was simple. Costs attributable to drilling

the Cass Companion Wells were charged to the Stephens wells,

expenses attributable to the Cass Companion Wells were

charged to the Stephens wells, revenue from the Stephens wells

was shifted to the Cass Companion Wells, and equipment and

materials from the Stephens wells were converted for use on the

Cass Companion Wells without payment to Mrs. Stephens.

VII:94; VI:160; XXIII:52-55; V1:160. The Cass Companion

Wells were then sold for $12 million. XXIII:97.

None of this was an accident. Bert Nelson, who had

officed with Cass, testified to the meticulous nature with which

Cass kept his books and records, and that Cass knew all of the

details of operations including costs and expenses incurred.

XIII:8-13. Cass was a meticulous recordkeeper who had

bragged of losing only one file in his business career. XIII:10.

He reviewed the invoices and joint interest billings before they

were sent out. XVII:39.

During this time neither General Stephens nor his wife

had any reason to suspect what was occurring. General Stephens

died on March 23, 1984, Mrs. Stephens’ birthday. She faced a

difficult task getting the estate's affairs in order. XV:70, 83-84.

General Stephens had not filed an income tax return or paid

property taxes for three years. XV:86. Years of invoices and

uncashed checks had accumulated in his home. XV:83-84. He

had, however, paid his friend Cass for joint interest bills on the

Stephens wells. XV:87-88.

Prior to her husband's death, Mrs. Stephens had not been

involved in the oil and gas business and had been a housewife

and mother. XV:70. She had very little knowledge of the oil and

gas business. XV:86. Mrs.Stephens and her advisors requested

information on the jointly-owned wells for the purpose of

completing the estate tax return. XV:97-98. Cass withheld

requested information. XV:100.

In March 1986, Cass sent Mrs. Stephens a letter

proposing to shut in twenty-six wells. XV:98-99. She happened

to see Bob Franklin, an engineer who had appraised the wells for

estate tax purposes. /d. Based on his advice, Mrs. Stephens

wrote a letter to Cass asking him to show her on a lease-by-lease

basis how the leases would be held without production. Jd. In

response, Cass called Mrs. Stephens and “went off the deep

end.” Jd. Over the course of the three-hour telephone

conversation, he became first evasive and then insulting. XV:

100-101. Cass told Mrs. Stephens that she did not know what

she was doing and neither did anyone working for her, including

Mr. Franklin; that her CPA, Deana Cole, was a "dingaling"; and

that her estate attorney, Robb Stewart, didn't know anything.

XV:100.

Concerned that Cass was withholding information, Mrs.

Stephens and her estate attorney hired a private investigator who

recommended a “trash cover.” XV:101, XV:10-13. The trash

cover revealed that between 150,000 and 200,000 documents

were systematically discarded over a period of twenty-five

months, including documents which were the subject of pending

discovery requests. Entire original files were thrown out,

including the pump installation and development files. These

files were essential to any effort to trace the movement of

equipment. XV:54-56, XXIII:92, XV:56-57. Cass even

discarded the only signed copy of the original Operating

Agreement after the lawsuit was filed. VI:45-47. (The

Operating Agreement is the document that establishes the core

rights and obligations of the parties. VI:4.8.)

Mrs. Stephens also hired Gruy Petroleum Management

Company (“Gruy’”) to conduct an audit of revenue and expenses

for the jointly-owned wells. XV:101. Gruy produced two reports

- a Revenue Audit Report (PX 18) and an Expenditure Audit

Report (PX 19). Both reports indicated major discrepancies —

the Expense Report showed a $2,900,000.00 discrepancy, and

the Revenue Report showed a $9,000,000.00 shortage. Jd.

After receiving the audit reports from Gruy in September

1986, Mrs. Stephens sent copies to the other working interest

owners with a financial stake in the wells. XV:103-104. In

response, Cass sued her for defamation.

At trial, Mrs. Stephens presented evidence of Cass’s

wrongful conduct primarily through her expert accountant,

Harold Eldridge, who had worked continuously for eight months

to complete his report. VIII: 113. The report meticulously

detailed Cass’s wrongful conduct. PX:1201A-1201E. Mr.

Eldridge identified twenty-three categories of wrongful conduct;

Volume 1 contains a section explaining each category. In

addition, Mr. Eldridge prepared a section on each of the sixty-

eight Stephens Wells with a summary for that particular well,

a commentary describing the conduct, and _ backup

documentation for his conclusions by well, as well as by month.

His summary report consists of an opinion letter and five

notebooks, identified as Exhibits PX 1201A-1201E respectively.

The jury found that Cass breached the Operating

Agreements, found reasonable attorneys’ fees for the breach of

contract claims, found that Cass had committed fraud, found that

Cass and Mike Cass had committed conversion, found that Cass

had fraudulently concealed his breach of contract, found actual

damages, and found punitive damages for fraud and conversion.

The jury also answered discovery rule issues in Mrs. Stephens’

favor. The jury rejected Cass's defamation claim. The trial court

also imposed discovery sanctions for egregious discovery abuse.

SUMMARY OF THE ARGUMENT

I. This Court has given adequate guidance to lower

courts regarding the constitutionality of punitive

damages awards. Because the Court of Appeals

correctly stated and applied Gore, the petition should

be denied.

The Texas Court of Appeals analyzed the punitive

damages award in strict accordance with this Court’s opinion in

BMWy. Gore. Given the reprehensibility of Cass’s conduct and

the potential harm to Mrs. Stephens had the scheme continued

undetected, the punitive damages award is not excessive. There

is ample evidence to support the egregious nature of Cass’s

conduct, and Cass’s assertion that the punitive damages award

was based on misconduct not related to the subject matter of the

litigation is pure speculation. Furthermore, the punitive

damages award is less than one-half of the funds obtained from

the sale of the Cass Companion Wells, which further supports

its reasonableness.

II. This Court has no jurisdiction over Cass’s argument

that Texas Rule of Appellate Procedure 47.7 violates

due process; thus, Cass’s petition should be denied.

This Court has no jurisdiction over Cass’s claim that the

Texas Court of Appeals’ decision not to publish its opinion

violates his Constitutional rights. First, Cass failed to move for

publication of the opinion as permitted under the Texas Rules of

Appellate Procedure, so the issue is not properly before this

Court. Second, Rule 47.7 was amended effective January 1,

2003; thus, to the extent Cass complains that unpublished

opinions may not be cited, his claim is moot. Finally, because

Cass cannot demonstrate that he was harmed by the fact that the

Court of Appeals’ opinion was unpublished, he does not have

standing to raise the issue before this Court.

ARGUMENT

I. Under BMW v. Gore, the Texas Court of Appeals

affirmed a punitive damages award that was not

grossly excessive.

Cass asserts a violation of substantive due process. His

claim is that the punitive damages awarded against him were

“grossly excessive” under BMW vy. Gore.

This Court has recognized that, in our judicial system,

compensatory and punitive damages serve different purposes.

State Farm Mut. Ins. Co. v. Campbell, No. 01-1289, slip op. at

5 (U.S. April 7, 2003). Compensatory damages are intended to

make the plaintiff whole, while punitive damages “serve a

broader function; they are aimed at deterrence and retribution.”

Id.

Because the need for deterrence and retribution will

depend on numerous and sometimes intangible factors, a jury

imposing a punitive damages award makes a qualitative

assessment based on facts and circumstances unique to the case

before it. TZXO Prod. Corp. v. Alliance Resources Corp., 509

U.S. 443, 457 (1993). Because no two cases are even nearly

identical, meaningful comparisons of punitive damages awards

are difficult to make. /d. But because punitive damages awards

are the result of the collective deliberation of jurors who swore

to be impartial, were reviewed and upheld by the trial judge who

also heard the evidence, and were affirmed by at least one higher

court, they are entitled to a “strong presumption of validity.” /d.

at 456-57.

A. This Court has given more than adequate guidance

to state and lower federal courts with respect to

excessive punitive damages awards.

Cass argues that this Court should grant his petition for

writ of certiorari to “determine whether additional guidelines are

needed to prevent state courts from approving awards that

violate the due process clause.” Cass’s Pet. at p. i. But, in an

effort to ensure to defendants the due process guarantees of the

Fourteenth Amendment, this Court, on several occasions, has

offered guidance for trial and appellate courts reviewing

punitive damage awards. See, e.g., Pacific Mut. Life Ins. Co. v.

Haslip, 499 U.S.'1 (1991); TXO Prod. Corp. v. Alliance

Resources Corp., 509 U.S. 443, 457 (1993); BMW v. Gore, 517

U.S. 559, 575 (1996); State Farm Mut. Ins. Co. v. Campbell,

No. 01-1289 (U.S. April 7, 2003). An evaluation of punitive

damages awards does not lend itself to a formulaic or

mathematical analysis—this Court has consistently recognized

that each case is different, and that there are no absolutes. In

fact, although Gore set forth specific guidelines for courts to

consider, even Gore relied on the “eyebrow” test, recognizing

that an evaluation of the reasonableness of a punitive damages

award is much more art than science. Gore, 517 U.S. at 583

(referring to Justice O’Connor’s dissent in 7XO and noting that

the ratio in Gore must surely “raise a suspicious judicial

eyebrow.’’).

In BMW v. Gore, this Court set out factors that a court

should consider when reviewing a punitive damages award. Jd.

This Court again addressed the application of these factors in

State Farm Mut. Ins. Co. v. Campbell, No. 01-1289 (U.S. April

7, 2003). The factors, with relevant comments as to their

application, are as follows:

The degree of reprehensibility of the Defendant’s

misconduct: “The most important indicium of the

reasonableness of a punitive damages award is the degree of

reprehensibility of the defendant’s conduct.” Campbell, No. 01-

1289, slip op. at 8 (citing Gore). This Court has instructed

courts to evaluate the degree of reprehensibility of a defendant’s

conduct by considering whether the harm caused was physical

or economic, whether the tortious conduct evidenced an

indifference to or reckless disregard for the health and safety of

others, whether the target of the conduct was vulnerable,

whether the conduct involved repeated actions (versus an

isolated incident), and whether the harm was the result of

intentional malice, trickery, or deceit, or merely an accident. Jd.

The nature of the defendant’s conduct is crucial; “trickery and

deceit” are per se more reprehensible than negligence. Gore, 517

U.S. at 576.

This Court has held that a jury may not award punitive

damages for conduct occurring in other states, especially when

that conduct may be lawful in those states. Gore, 517 U.S. at

572; Campbell, No. 01-1289, slip op. at 9, 10. Furthermore, this

Court recently cautioned states not to allow punitive damages to

be based on conduct bearing no relation to the plaintiffs harm.

Campbell, No. 01-1289, slip op. at 12. Dissimilar acts by the

defendant, if they are independent of the acts upon which

liability was based, may not be the basis for a punitive damages

award. /d. And when evaluating a defendants’ “recidivist”

conduct, courts must ensure that the conduct in question

replicates prior wrongful conduct. /d. at 12, 13 (“The

reprehensibility guidepost does not permit courts to expand the

scope of the case so that a defendant may be punished for any

malfeasance, which in this case extended for a 20-year period.”).

In sum, punitive damages must be related to the harm caused

only to the plaintiff and only by the defendant. /d. (“Due

process does not permit courts, in the calculation of punitive

damages, to adjudicate the merits of other parties’ hypothetical

claims against a defendant under the guise of the reprehensibility

analysis.’’).

The disparity between actual and punitive damages:

In Gore and again in Campbell, this Court rejected a

mathematical or “bright-line” approach to determining what

ratio of punitive to actual damages was grossly excessive, Gore,

517 U.S. at 582-83; Campbell, No. 01-1289, slip op. at 14,

although it stated that in practice, an appropriate punitive

damages award will rarely be more than a single-digit multiple

ofacompensatory damages award. Campbell, No. 01-1289, slip

op. at 14. In reiterating its reluctance to speak in terms of a

“bright-line” constitutional limit, this Court noted that low

compensatory awards might very well support a higher ratio if,

for example, particularly egregious conduct resulted in only

minimal economic damages, or when the injury is hard to detect

or the monetary value of non-economic harm might have been

difficult to establish. Gore, 517 U.S. at 582. It is also

appropriate to consider the potential harm to plaintiff if the

defendants’ wrongful conduct would have continued or had a

thwarted scheme succeeded. 7XO, 509 U.S. 460; Gore, 517

U.S. 581. .

A review of Haslip, TXO, Gore, and Campbell reveals

that more egregious conduct supports a higher ratio. See also

Campbell, No. 01-1289, slip op. at 15. In other words, the

disparity between actual damages and punitive damages is not

necessarily controlling where the defendant’s conduct is

particularly egregious. TXO, 509 U.S. at 462. TXO held that a

punitive damages award 526 times actual damages was not

“grossly excessive” given the nature of the defendant’s conduct.

Justice Kennedy, writing for the plurality, concluded:

In sum, we do not consider the dramatic disparity

between the actual damages and the punitive

award controlling in a case of this character. On

this record, the jury may reasonably have

determined that petitioner set out on a malicious

and fraudulent course to win back, either in

whole or in part, the lucrative stream of royalties

that it had ceded to Alliance. The punitive

damages award in this case is certainly large, but

in light of the amount of money potentially at

stake, the bad faith of petitioner, the fact that the

scheme employed in this case was part of a

larger pattern of fraud, trickery and deceit, and

petitioner’s wealth, we are not persuaded that the

award was so “grossly excessive” as to be

beyond the power of the State to allow.

Id. This is particularly telling given that this Court suggested

just two years earlier in Haslip that a ratio of four to one might

be near the Constitutional line. Haslip, 499 U.S. at 23.

In 7XO, this Court considered the potential gain to the

defendant had its elaborate scheme succeeded, 7XO, 509 U.S. at

461, although the gain was not quantifiable on the record in that

case. This Court has also cited with approval the Alabama

courts’ punitive damages statute, which prescribes factors for

appellate review of punitive damages awards; one of those

factors is “the profitability to the defendant of the wrongful

conduct and the desirability of removing that profit and of

having the defendant also sustain a loss.” Haslip, 499 U.S. 1,

21-22.

It seems a logical extension of 7XO and this Court’s

punitive damages jurisprudence that, where the benefit to

defendant is quantifiable, that figure should also be considered

when evaluating the reasonableness of a punitive damages

award. A punitive damages award that is only a fraction of the

profit pocketed by defendant as a result of his deceit may be

appropriate, even where it is a larger multiple of compensatory

damages. The purposes of a punitive damages

award—punishment and retribution—would hardly be served if

the defendant were allowed to retain the profit of his

misconduct.

A comparison of the punitive damages awarded in

other civil cases or criminal penalties that could be imposed

for similar misconduct: The’ third Gore guidepost

considers criminal penalties that could be imposed for the same

or similar conduct, but only to the extent that the existence of

criminal sanctions bears on the seriousness with which the state

views the wrongful action. Campbell, No. 01-1289, slip op. at

18. The fact that imprisonment is available and likely to be

imposed is significant. Haslip, 499 U.S. 1 at 23. The actual

dollar amount of any potential fine is less instructive, however.

Id.

A review of this Court’s jurisprudence on punitive

damages and due process illustrates that, short of a formulaic

rule, this Court can offer no more “guidance” to lower courts.

This Court has listed factors and clearly illustrated their

application. What more can this Court do? Thus, unless this

Court intends to establish a bright-line rule, there is no need to

offer further guidance to lower courts, and this petition need not

be granted on that basis.

B. The Court of Appeals properly stated and

applied this Court’s decision in BMW v. Gore.

An analysis of the lower court’s opinion in this case

establishes that lower courts are properly applying the guidelines

set forth by this Court. The Texas Court of Appeals in this case

applied the Gore factors and held that the punitive damages

award was reasonable. Cass v. Stephens, 2001 WL 28092, *31-

33. There is ample evidence of reprehensibility, the most

significant of the Gore factors, to support the punitive damages

award in this case. Also, the punitive damages award is less

than half of the funds obtained by the sale of the Cass

Companions Wells, which further supports its reasonableness.

The Court cf Anneals analyzed this case as follows:

The degree of reprehensibility of the Defendant’s

misconduct: The Court of Appeals discussed the

reprehensibility of Cass’s conduct, which is the “most

important” Gore factor, at length in its opinion. Cass

orchestrated and carried out a deliberate pattern of deception on

a vulnerable elderly woman, and the Court repeatedly

emphasized the deliberate manner with which Cass defrauded

and deceived her. Consider:

° Cass defrauded the joint interest owners and converted

their equipment for his own personal gain, Cass, 2001

WL 28092 at *30;

° Cass converted jointly-owned equipment with actual

malice—Cass actively tried to conceal his bad acts, Cass

altered established accounting procedures to provide less

information to the working interest owners, Cass failed

to provide the auditors with the documents disclosing

unauthorized transfers and gross overbilling, and Cass

attempted to destroy the documents tracing the

fraudulent transfers and bogus charges by throwing them

in the trash, /d. at 28;

Cass kept a very detailed accounting of expenditures for

himself, but sent out very condensed and abbreviated

accountings to the joint interest owners, which contained

very little information concerning the details of the

expenditures, which was highly irregular in the oil and

gas business; a witness testified that the procedure was

implemented solely to keep Mrs. Stephens from

discovering the types of costs for which she was being

billed, Jd. at *19;

The Stephens’ wells were billed and Mrs. Stephens paid

for numerous goods and services, including ad valorem

taxes, hauling, electricity, and road work, provided

solely to the Cass companion wells, /d. at *13;

Cass billed Mrs. Stephens for “operating expenses” for

inactive wells, which she paid, /d.;

Cass personally benefitted from these “misallocations,”

Id.;

Cass personally altered and signed numerous delivery

tickets and vendor’s invoices to divert expenses from the

Cass companion wells to the Stephens wells, which Mrs.

Stephens paid, /d.;

° Jointly-owned equipment was systematically transferred

from the Stephens wells to the Cass companion wells,

with no credit given to Mrs. Stephens for the transfers,

Id. at *14;

° Cass specifically tried to conceal his relationship with

numerous affiliate companies not only from the joint

interest owners who paid these companies for “services,”

but from the auditors hired to audit the joint interest

billings, Jd. at *19;

° Cass destroyed documents requested both by the auditors

and by Mrs. Stephens in discovery requests”', Jd.;

° Cass ran a multi-million dollar corporation, while Mrs.

Stephens was a housewife generally unfamiliar with the

oil and gas business, who was working to settle the

affairs of her husband’s estate, Jd. at *30:

° Cass took advantage of General Stephens during his

illness and Mrs. Stephens by systematically inflating the

*'Cass argues that this conduct is “not related to the subject matter of the

litigation” and should not have been considered by the jury in awarding punitive

damages. See Cass Pet. at 14-15. F irst, this conduct occurred both before and after

suit was filed. After the suit was filed, such conduct might have been a discovery

violation, but it was also the continuation of a pattern of fraud and deceit perpetrated

by Cass and is thus relevant to the punitive damages inquiry. Second, there is no

evidence that this conduct was considered by the jury in making the punitive damages

] award. Contrary to Cass’s statement that the record is “bereft of clear evidence of any

i intent to defraud or of malicious conversion” Cass Pet. at p. 14, there is

i overwhelming evidence of intentional, fraudulent conduct to support the jury’s award

in this case. Finally, even if there was such evidence, Cass did not argue on appeal

that such information should have been kept from the jury, nor did he challenge the

punitive damages question and instructions on appeal, so this issue is not properly

before this Court.

joint interest billings, making fraudulent expense

charges, and converting the jointly-owned equipment,

Id.;

° Cass deliberately and intentionally acted for his own

benefit at the expense and detriment of the working

interest owners, Jd. at *28;

° Cass generally resisted and attempted to delay the trial of

this matter for approximately ten years, /d.;

° Cass and his son committed a “pattern of abuses,”

including making the joint interest owners pay multiple

times for the same property, discontinuing their

procedures for documenting material transfers thereby

making it harder to trace property transfers, destroying

documents that evidenced the transfers, failing to give

auditors the documents necessary to trace the transfers,

and finally, selling the Cass companion wells, including

the converted equipment, for $12,000,000.00, /d. at *16.

The Court noted that the jury could easily find the facts to be

“substantially offensive” to a public sense of justice and

propriety. Jd. at *30.

Although the harm in this case was predominantly

economic, Mrs. Stephens and her daughter also testified as to the

toll the long years of litigation and the betrayal of trust by a

close personal friend had taken. Cass, 2001 WL 28092 at *5.

Cass’s conduct clearly evidenced a disregard for the rights of

others—he systematically lied, cheated, and stole from a

vulnerable elderly woman who had placed her trust in him as her

husband’s former business partner and friend. Cass’s conduct

illustrated a pattern of deception—one that would likely have

continued had Mrs. Stephens not waged a sixteen-year battle to

bring it to an end. And this case epitomizes intentional malice,

trickery and deceit. Cass’s was truly reprehensible conduct. As

the Texas Court of Appeals stated:

Frank (Cass) and Michael intentionally and

deliberately defrauded and converted the

property of the joint interest owners for their

own personal benefit. Fraud and conversion are

ancient wrongs which are roundly denounced

and receive little public sympathy. Here, the

facts are egregious and show a deliberate attempt

by both men to escape responsibility for their

wrongful conduct.

Cass, 2001 WL 28092 at *32.

The disparity between actual and punitive damages:

The judgment awarded $786,243.91 actual damages against

Cass: $586,162.17 for breach of contract, $101,300.92 for fraud,

and $98,780.82 for conversion. As remitted, Mrs. Stephens was

awarded punitive damages of $2.5 million for fraud and $2.5

million for conversion. The ratio of punitive damages to all

actual damages is 6:1; the ratio of punitive damages to fraud

damages 1 is about 25:1, as is the ratio of punitive damages to

conversion damages. Significantly, however, the total punitive

damages awarded against Cass in this case—$5 million—is less

than half of what was obtained from the sale of the Cass

Companion Wells.”

*Cass and his sons jointly owned the Cass Companion Wells that were sold

for $12 million. Michael testified that he got about $3.8 million. XXVII: 82-83.

Presumably, Frank’s other son also got a share. Cass and both of his sons were

defendants at trial, and the jury awarded a total of $7.5 million in punitive damages

The Court of Appeals first noted that this Court has

consistently rejected a categorical approach to determining what

is a “grossly excessive” ratio. Jd. at *32. It emphasized that this

Court’s mandate was that the award be “reasonable and not

shocking to our judicial sensibilities.” Jd. The Court thoroughly

reviewed the record and considered all of the evidence, both in

support of and against the jury’s verdict. Applying the

“eyebrow” test, the court was not shocked by the ratios in this

case. Id. The court emphasized Cass’s intentional, fraudulent

conduct and the fact that such conduct was for Cass’s personal

benefit. /d. The court noted that Cass’s behavior was truly

“egregious” and illustrated a deliberate attempt to escape

responsibility for his wrongful actions. /d. at 32. The Court

repeatedly noted that the Cass companion wells were sold for

$12 million. Jd. at *15, *28, *31.

A comparison of the punitive damages awarded in

other civil cases or criminal penalties that could be imposed

for similar misconduct: The Court of Appeals noted that

Texas criminal law punishes theft of property in the amounts

converted here as a third-degree felony. Cass, 2001 WL 28092

at *33. In Texas, such conduct is punishable by up to 10 years

in jail and carries a minimum sentence of two years. Jd. Given

that Texas considers such conduct serious enough to be

classified as a felony, a substantial punitive damages award is

justified.

against all of the defendants. Thus, even if the total punitives are compared to the

total received by all three men from the sale of the Cass Companion Wells, the

punitive damages are only 63% of the sale price. This suggests that the award could

have been significantly higher and still not eviscerated the defendants’ gain from

Cass’s scheme.

Significantly, the Court of Appeals did not violate any of

the other “rules” propounded by the Court. The Court of

Appeals did not consider out-of-state conduct or conduct

bearing no relation to Mrs. Stephens’ harm. No dissimilar acts

were considered (as in Campbell). The jury was dealing with a

pattern of deceitful, fraudulent conduct perpetrated on an elderly

woman who considered Cass a friend. The award was most

likely driven by the jury’s abhorrence of Cass’s conduct and

their desire to punish him and to deter similar conduct.

In sum, Mrs. Stephens was confronted with her

husband’s long illness, during which time he was unable to

handle his financial affairs, and eventual death. Mrs. Stephens’

husband had been partners with Cass, and she trusted him; the

jury apparently believed that he took unfair advantage of her

trust. Considering the evidence as a whole, and taking into

account the jury’s unwillingness to believe most of Cass’s

testimony, the Court of Appeals determined that the evidence

regarding the degree of reprehensibility of Cass’s conduct was

overwhelming.

a The Texas Court of Appeals properly stated

and applied this Court’s punitive damages

jurisprudence.

The Texas Court of Appeals correctly stated and applied

this Court’s pronouncements regarding the constitutionality of

punitive damages award. Cass argues that the Court of Appeals

merely “claimed” to follow Gore, implying that even though the

law was correctly stated, it was misapplied. But this Court

rarely grants a writ of certiorari when the asserted error is the

misapplication of a properly stated rule of law. SUP. Cr. &. 40.

Thus, this case does not merit review by this Court and Cass’s

Petition for Writ of Certiorari should be denied.

Il. Cass’s second issue, that Texas Rule of Appellate

Procedure 47.7 violates due process, is not justiciable.

Cass argues that Texas Rule of Appellate Procedure

47.7, which affects the citability and precedential value of

unpublished opinions, violates due process. He complains both

that unpublished opinions cannot be cited, and that such

opinions have no precedential value. Neither issue is properly

before this Court. First, Cass failed to raise this issue in the

Court of Appeals by moving for publication as permitted by the

Texas Rules of Appellate Procedure. Second, to the extent Cass

complains that unpublished opinions cannot .be cited, his

complaint is moot. Finally, to the extent he complains that

unpublished opinions have no precedential value, Cass does not

have standing to bring this issue before this Court.

A. Cass did not timely raise this issue.

The Court of Appeals released an unpublished opinion

in this case, which Cass claims is a violation of his due process

rights. But Cass never made a motion to publish the opinion, as

permitted by the Texas Rules of Appellate Procedure.

TEX.R.APP.P 47.3(c). Had the Court of Appeals denied a

motion to publish, he could have then asked the Supreme Court

to order the opinion to be published. TEX.R.AppP.P. 47.3(d).

Cass did neither. By failing to move for publication of the

opinion in the Court of Appeals, Cass denied Texas courts the

opportunity to review the constitutionality of a state statute.

Because the issue was not raised in the courts below, this Court

has no jurisdiction to review this issue. 7XO, 509 US. at 463.

CS OR rai Btu Sh ond in “

B. To the extent Petitioner complains that

unpublished opinions cannot be cited, his

argument is moot.

Cass complains that Texas Rule of Appellate Procedure

47.7 “prohibits the citation of unpublished opinions” and thus,

violates due process. Effective J anuary 1, 2003, howevér, Rule

47.7 was amended. It now allows the citation of unpublished

opinions:

Opinions not designated for publication by the

court of appeals under these or prior rules have

no precedential value but may be cited with the

notation, “(not designated for publication).”

TEX. R. App. P. 47.7 (emphasis supplied). The comment to the

new rule now notes that it was “substantively changed to

discontinue the use of the “do not publish,” designation in civil

cases, to require that all opinions of the courts of appeals be

made available to public reporting services, and to remove

prospectively any prohibition against the citation of opinions as

authority in civil cases... .” Comment, TEX. R. App. P. 47.

Even an opinion previously desi gnated “do not publish” such as

the one at issue in this case, may be cited. /d.

Thus, to the extent that Cass complains that unpublished

opinions cannot be cited, his complaint is moot. United States

Dept. of Treasury, Bureau of Alcohol, Tobacco & F irearms v.

Galioto, 477 U.S. 556, 559-60 (1986) (holding that an

amendment to a challenged statute rendered the case moot).

i. To the extent that Cass’s complaint is the

precedential value of unpublished opinions,

Cass does not have standing.

Cass also complains that Rule 47.7's limitation on the

precedential value of unpublished opinions is unconstitutional.

But because he cannot show that failure to give precedential

value to an unpublished opinion harmed him in any way, he

does not have standing.

The “fundamental aspect” of standing is that it focuses

not on the issue before the Court, but on the party asserting that

issue. Flast v. Cohen, 392 U.S. 83, 99 (1968). In other words,

the standing inquiry asks whether the party seeking relief has

alleged a personal stake in the resolution of the question, such

that he is the proper party to ask this Court to adjudicate a

particular issue. /d. Thus, the question is not whether this Court

has jurisdiction to determine whether a state’s rule regarding

unpublished opinions is constitutional, but whether Cass has a

real interest in that determination, so that he is the proper party

to raise the issue.

This Court has identified three Constitutional standing

requirements. First, the petitioner must establish that he has

suffered an injury-in-fact—an invasion of a legally protected

interest which is concrete and particularized and actual or

imminent, not conjectural or hypothetical. Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560 (1992). Second, there must be a

causal connection between the injury and the challenged

conduct; the injury must be “fairly traceable” to the conduct of

which petitioner complains. /d. Finally, it must be likely, and

not merely speculative, that a favorable decision will redress the

petitioner’s injury. Jd. at 561.

To have standing with respect to the constitutionality of

limiting the precedential value of unpublished opinions, Cass

must allege that he_was injured by his inability to rely on an

unpublished opinion. Yet Cass cites to no unpublished opinion

that, had he been permitted to cite, would have compelled a

different result in the courts below. He has never argued that a

prior unpublished opinion would have compelled a different

result in his case, had it had precedential value. He simply

claims that his case was unpublished and that future litigants

will not be able to rely on it in their cases. A future litigant

whose case turns on whether or not Cass’s case has precedential

value might have standing to make the argument Cass makes

here, but Cass does not. He can show no injury caused by Rule

47.7; thus, he has no standing to raise this issue before this

Court.

D. Petitioner’s real complaint is that the Texas

Supreme Court did not review this case.

Cass states in his Petition for Writ of Certiorari that “No

citation rules also make it difficult, if not impossible, for a

litigant like Cass to convince a hi gher court to review a Court of

Appeals’ unpublished decision.” Cass Pet. at p. 25. Cass is

convinced that, had the Court of Appeals’ opinion been

published, the Texas Supreme Court would have granted his

petition for review, reversed the Court of Appeals on all

grounds, and left him witha take-nothing judgment in his favor.

See Cass’s Motion for Rehearing in the Texas Supreme Court at

pp. 2-3 (“if the opinion was published, Mr. Cass is convinced

that this Court would readily grant the Petition....The fact that

the opinion is unpublished allows [the El Paso Court] to insulate

themselves from this Court’s review...given this Court’s

propensity not to grant petitions for review in cases where the

appellate opinion is unpublished.”’).

Cass’s argument that the Texas Supreme Court did not

review his case because the opinion was unpublished is pure

speculation and presupposes that the Court did not discharge its

duties. Cass argues that he could not establish jurisdiction

because the opinion was unpublished. First, jurisdiction is not

dependent on publication. The Texas Supreme Court denied the

petition outright—it did not dismiss it for want of jurisdiction.

Jurisdiction is merely a prerequisite to granting a petition for

review. It does not follow that the Court wi// grant the petition

if it has jurisdiction, only that it may. Stated differently, the

Texas Supreme Court is not obligated to take a case just because

it has jurisdiction. So whether the fact that the opinion was

unpublished affected the Court’s jurisdictional analysis (and

there is no indication that it could have), the fact that the opinion

was unpublished did not necessarily impact the Court’s decision

not to review the case.

Cass argues that an unpublished opinion, because it has

no precedential value, is per se not important to the

jurisprudence of the state, so that the Texas Supreme Court is

not likely to review it. But Cass has it exactly backwards. It is

not that the opinion in his case was not important because it was

unpublished; rather, the opinion was unpublished because it was

not important to the jurisprudence of the state. This case raised

no new issues that would have compelled its publication under

the Texas Rules and that might have made the Texas Supreme

Court more likely to exercise its discretion and grant review. If

the lowers courts properly apply Rule 47, few, if any,

unpublished opinions will merit review simply because the

issues in those cases are so well-settled.

Cass may be arguing that the Texas courts somehow

“conspired” to deny him adequate review. He states that the El

Paso court violated Rule 47 by making this an unpublished

eR AD OS AE IE NIN AAO ENA 5 ii wt, tay an -

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opinion, apparently in an effort to shield itself from higher court

review. See Cass’s Motion for Rehearing at p. 1. He also infers

that the Texas Supreme Court denied his petition because it was

unpublished, without regard for the Court’s duty to consider the

significance of each case. /d at 1-2. (“By allowing the El Paso

Court to rewrite Texas state law on multiple occasions in a 65-

page opinion, and then not publish that opinion, thereby giving

it no precedential value for future litigants, this Court has put its

stamp of approval on an abuse of power by the El Paso Court

and has allowed Texas Rule of Appellate Procedure 47.7 to

serve as a basis for courts of appeals to circumvent this Court’s

review of their blatantly erroneous decisions...this Court should

recognize its duty to correct the injustice and grant the

Petition.”). If that is what Cass is asserting, this Court should

be careful not to assume the role of ensuring that state court

justices properly carry out their judicial duties. This Court

should presume that the Texas courts followed the statutes

which govern their decisions with respect to publication and

review, particularly when there is no indication that either the El

Paso Court of Appeals or the Texas Supreme Court did anything

other than effectively carry out their duties under the law.

In conclusion, this Court does not have jurisdiction to

consider whether the inability to cite and/or rely on unpublished

opinions violates due process. And this Court should be wary

of considering the issue Cass really asserts—that Texas courts

blatantly violate the rules and manipulate litigants to defeat the

ends of justice. That is simply not the case. The Texas Supreme

Court, just like this Court, has discretionary review. Like this

Court, the Texas Supreme Court must prioritize cases and deal

with those it believes are the most significant to Texas

jurisprudence. That is precisely what it did in this case.

CONCLUSION AND PRAYER FOR RELIEF

The Texas Court of Appeals properly analyzed the

punitive damages award under this Court’s punitive damages

jurisprudence including Gore, Campbell, and related cases.

Under that analysis, the punitive damages award is reasonably

proportional and does not violate Cass’s substantive due process

rights. This case is not one where state courts approved a

punitive damages award that was “out of bounds.”

Cass’s second issue, which concerns “no publication”

rules, is not properly before this Court. Cass did not raise the

issue in the courts below. To the extent Cass complains that

Rule 47 prohibits citation of unpublished opinions, his argument

is moot. To the extent he complains that Rule 47 precludes the

precedential value of unpublished opinions, he does not have

standing to bring the issue before the Court. This Court should

take care to ensure it does not “police” state courts to ensure that

they are properly fulfilling their duties under state law.

For these reasons, Mrs. Stephens prays that this Court

deny Cass’s petition for writ of certiorari.

Respectfully submitted,

TURNER, DAVIS & GERALD

A Professional Corporation

400 W. Illinois, ose 1400

ohn A. "Jad" Davis

/ State Bar No. 05511400

Brandy Manning

State Bar No. 24029703

ATTORNEYS FOR RESPONDENTS

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.