Opposition Brief — Walker v. Windom

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No. 92-1773

In The

Supreme Court of the United States

October Term, 1992

THELMA H. WALKER,

Petitioner,

vs.

STEPHEN R. WINDOM AND THE LAW FIRM DBA

SIROTE & PERMUTT, ET AL.,

Respondents.

Petition For Writ Of Certiorari To The

Supreme Court Of Alabama

RESPONDENTS’ BRIEF IN OPPOSITION

Frep K. GRANADE

(Counsel of Record)

STONE, GRANADE, Crossy &

BLaAckBuRN, P.C.

34 Pine Street

Bay Minette, Alabama 36507

205/937-2417

Counsel for Respondents,

Stephen R. Windom, and Sirote &

Permutt, P.C.

PARTIES TO THE PROCEEDINGS

The Petitioner in this Court is Thelma H. Walker.

Respondents in this Court are Stephen R. Windom

and Sirote & Permutt, P.C.

TABLE OF CONTENTS

Page

PARTIES TO THE PRUCEEBOUINGS «os... ccccscescnus i

pr BS Bee sy: Peer rer rrr Tr rary te ii

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SRE es ei: ow en er rer 1

A. Preservation of Constitutional Challenges.... 1

@. Statement of the Facts... .....0siccssccrivess 2

SUMMARY OF ARGUMENT....................42. z

REASONS FOR DENYING THE PETITION......... 4

I. QUESTION ONE - Due Process Argument..... 4

A. Petitioner Failed to Preserve Her Due Pro-

PESTER ere eee 4

B. Petitioner Has Not Been Denied Due Process 7

I]. QUESTIONS TWO AND THREE - Equal Protec-

tion and Seventh Amendment Arguments...... 9

CAs AAEM 6 60545 ss ac eaenaeen ean eee 11

ili

TABLE OF AUTHORITIES

Page

CasEs

Bankers Life and Casualty v. Crenshaw, 486 U.S. 71

En 5

Hales v. First National Bank of Mobile, 380 So. 2d

case ce icp esectsccecees 8, 9

Hardware Dealers Mutual Fire Insurance Co. v. Glid-

en Re, gee Us. 151 (2951)...............0000005. 10

Kentucky v. Stincer, 482 U.S. 730 (1987)............... 5

Patrick v. Burget, 486 U.S. 94 (1988) .................. 5

Pernell v. Southall Realty, 416 U.S. 363 (1974) ........ 10

Ex Parte Peterson, 253 U.S. 300 (1920) ............... 11

Port of Palm Beach District v. Goethals, 104 F.2d 706

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MiscELLANEOUS

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No. 92-1773

In The

Supreme Court of the United States

October Term, 1992

THELMA H. WALKER,

Petitioner,

VS.

STEPHEN R. WINDOM AND THE LAW FIRM DBA

SIROTE & PERMUTT, ET AL.,

Respondents.

Petition For Writ Of Certiorari To The

Supreme Court Of Alabama

’

RESPONDENTS’ BRIEF IN OPPOSITION

STATEMENT OF THE CASE

A. Preservation of Constitutional Challenges

In the petition for writ of certiorari, Petitioner asserts

a due process challenge, an equal protection challenge,

and a Seventh Amendment challenge concerning the

right to a jury trial. However, the record shows that

Petitioner failed to raise in the courts below the due

process issue asserted in her petition, and that issue was

not passed upon by the courts below. Additionally, Peti-

tioner’s equal protection and Seventh Amendment chal-

lenges are not federal constitutional questions at all, and

likewise those issues were not passed upon by the courts

below. Consequently, Petitioner’s constitutional chal-

lenges are not properly before the Court.

B. Statement of Facts

Petitioner incorrectly states several facts in her peti-

tion, all of which are totally irrelevant to the issues

asserted in her petition.

Specifically, the trial court did not refuse all discov-

ery in the action below, indeed the court explained to

Petitioner methods of discovery to enable her to obtain

necessary documents.

All of Petitioner’s allegations relating to the trial

judge and any alleged bias are based on her own

unsworn allegations, none of which she has personal

knowledge of, and were never properly before the court.

SUMMARY OF ARGUMENT

In the petition for writ of certiorari, Petitioner pro-

poses to raise three separate constitutional challenges to

the Alabama Suvreme Court’s affirmance of the trial

court’s summary judgment against Petitioner. However,

none of Petitioner’s supposed constitutional claims merit

review by this Court.

Petitioner’s first challenge, a due process challenge,

was neither pressed nor passed upon in the courts below.

Consequently, there is nothing for this Court to review

with respect to Petitioner’s due process argument. Fur-

thermore, even if Petitioner had preserved her due pro-

cess argument, it is without merit. Petitioner argues that

the trial court denied Petitioner’s due process by granting

summary judgment on Petitioner’s second amended com-

plaint without giving Petitioner notice that the second

amended complaint was being considered for summary

judgment. Petitioner alternatively claims that she was

denied due process when the trial court allegedly granted

summary judgment without considering Petitioner’s sec-

ond amended complaint. Petitioner’s due process argu-

ments are premised on the assumption that the trial court

allowed Petitioner’s second amended complaint. The

record in this case is not clear whether that assumption is

correct. Furthermore, the authorities cited and relied

upon by Petitioner in support of her alternative due

process arguments are factually and legally distinguish-

able and do not support Petitioner’s due process argu-

ments. Finally, even if the Petitioner was correct that the

trial court procedurally erred in granting summary judg-

ment, the error would have been harmless since the Ala-

bama Supreme Court specifically determined that

summary judgment was properly granted as to Peti-

tioner’s second amended claim. Consequently, Peti-

tioner’s due process claim fails in all respects.

Petitioner’s equal protection and Seventh Amend-

ment arguments are equally without merit. As with Peti-

tioner’s due process arguments, neither of the lower

courts passed upon Petitioner’s equal protection and Sev-

enth Amendment arguments. The reason is simple. Peti-

tioner only made oblique references concerning the

alleged violation of her constitutional rights while rear-

guing the facts to the courts below. Petitioner again

wishes to reargue her case to this Court.

This Court’s rules provide that “[a] petition for writ

of certiorari will be granted only when there are special

and important reasons therefor.” Sup. Ct. R. 10. The

instant petition fails to meet the criteria enumerated in

Rule 10. The Alabama Supreme Court's decision does not

conflict with any decision of a federal court of appeals or

any decision of this Court. There are no federal constitu-

tional questions contained in ‘the petition for certiorari

warranting review by this Court.

REASONS FOR DENYING THE PETITION

I. QUESTION ONE - Due Process Argument

A. Petitioner Failed to Preserve Her Due Process

Argument

Petitioner asserts that she raised “[the] issue of due

process” on several occasions in the trial court and in the

Alabama Supreme Court. However, the record clearly

shows that Petitioner has not timely pressed the particu-

lar due process issue asserted in her petition tw either the

trial court or the Alabama Supreme Court. Consequently,

the trial court had no opportunity to consider or rule on

this issue, and the Alabama Supreme Court was under no

obligation to consider this issue and, from aught that

appears from the supreme court’s opinion, the supreme

court did not consider it. For this reason alone, the Court

need not consider Petitioner’s due process argument.

Kentucky v. Stincer, 482 U.S. 730, 747 n. 22 (1987); see also

Patrick v. Burget, 486 U.S. 94, 99 n. 5 (1988) (“This Court

usually will decline to consider questions presented in a

petition for writ of certiorari that have not been consid-

ered by the lower court.”); Bankers Life and Casualty v.

Crenshaw, 486 U.S. 71, 79 (1988) (“[T]he policies that ani-

mate the ‘not pressed or passed upon below’

rule . . . [include] a constellation of practical consider-

ations, chief among which is our own need for a properly

developed record on appeal.”).

The only issues of “due process” asserted by the

Petitioner in the trial court were obliqv. references to

Petitioner’s constitutional rights containea in her motion

to recuse and related filings. However, Petitioner has

never asserted the failure of the trial judge to recuse

himself as grounds for reversal, and consequently those

allegations did not press the due process issue contained

in the petition.

Petitioner also failed to properly raise the stated due

process issue before the Alabama Supreme Court, as evi-

denced by the following excerpt of Petitioner’s briefs to

the Alabama Supreme Court:

Brief to Alabama Supreme Court

Did the trial court deprive Thelma H. Walker

due process of law as guaranteed under the 14th

amendment of the U.S. Constitution when it

failed to allow a jury to evaluate the evidence of

malicious prosecution and the obtaining of a

consumer credit report under false pretenses?

When Judge Reid issued a summary judgment

in favor of the defendants, he deprived Thelma

Walker of a trial by jury and violated Thelma

Walker’s right to pursue her cause of action

under due process of law. Judge Reid prevented

Thelma Walker from engaging in discovery

under rule 34 and failed to enforce the rules of

civil procedure related to discovery. He further

failed to record documents provided to him

under rule 5(e) of the Alabama Rules of Civil

Procedure. Thelma Walker did not receive equal

treatment under the law.

Application for Rehearing to

Alabama Supreme Court

3. Violation of Walker’s constitutional rights

* * *

The Circuit Court of Baldwin County has ille-

gally denied Thelma Walker equal protection

under the laws. Judge James H. Reid, Jr. failed

to uphold the state’s standards in issuing sum-

mary judgment in behalf of the defendants

against Thelma Walker. Walker was not treated

equally under the law or in accordance with the

rules of the court. Walker was deprived of a

hearing on her complaint and denied due pro-

cess of law. The Supreme Court has illegally

affirmed the Circuit Court’s actions.

Regardless of how Petitioner would now like to char-

acterize the “due process” issues quoted above, Petitioner

in no way alerted either the trial court or the Alabama

Supreme Court of the due process issue she now raises in

her petition of certiorari. Petitioner has long since waived

the due process argument she raises in her petition.

Accordingly, certiorari is due to be denied on that issue.

B. Petitioner Has Not Been Denied Due Process

Even if Petitioner had preserved her due process

argument, there is no basis in fact or law to support

Petitioner’s argument. Petitioner’s due process argument

is based on the following sequence of events. Petitioner

filed her original complaint on March 22, 1991, and

amended it on August 19, 1991. On September 13, 1991,

Respondents filed a motion for summary judgment as to

all of Petitioner’s claims. On September 25, 1991 the trial

court heard oral argument on Respondents’ motion for

summary judgment and asked for specific briefs and

directed no further argument would be allowed. On

November 15, 1991, Petitioner filed a second amended

complaint, asserting a new claim against the Respondents

based on allegedly improperly obtaining a credit report.

On November 18, 1991, Respondents filed a motion to

strike Petitioner’s amended complaint, and on January 2,

1992 the trial court granted Respondents’ motion for

summary judgment as to all of Petitioner’s claims.

Petitioner’s due process argument is first premised

on the assumptions that the trial court first allowed her

second amended complaint and then converted Respon-

dents’ motion to strike into a motion for summary judg-

ment. Neither of these assumptions are necessarily true.

The trial court failed to specifically rule on Respondents’

motion to strike, and the trial court’s order granting

summary judgment does not delineate whether the sec-

ond amended claim was even considered by the court. It

is an equally plausible assumption that the trial court

simply refused to allow Petitioner’s second amended

claim or implicitly granted Respondents’ motion to

strike.! Moreover, even if the trial court intended to grant

summary judgment as to Petitioner’s second amended

claim, and procedurally erred in doing so, the error

would be harmless. Petitioner appealed all of her claims,

including her second amended claim to the Alabama

Supreme Court. The Alabama Supreme Court in its opin-

ion determined that summary judgment was appropriate

as to that claim. Consequently, if the trial court erred by

including Petitioner’s second amended claim in his sum-

mary judgment order, it was harmless error and did not

violate Petitioner’s due process rights.

Petitioner contends that the Alabama Supreme

Court’s decision in her case conflicts with its previous

decision in Hales v. First National Bank of Mobile, 380 So.2d

797 (Ala. 1980). However, the Hales decision involved the

conversion of motion to dismiss to a motion for summary

judgment. Alabama’s Rules of Civil Procedure provide

for such a conversion, and the Rule specifically provides

that “all parties shall be given reasonable opportunity to

present all material” as per Rule 56 (governing summary

judgment motions). Ala. R. Civ. P. 12(c). On the other

hand, Alabama’s Rules of Civil Procedure concerning a

motion to strike provide that the court may on its own

initiative at any time strike a pleading, and the Rules do

not provide for any notice to the parties. Ala. R. Civ. P.

12(f). Furthermore, unlike in Hales, in the case at hand a

summary judgment motion was already pending as to all

1 The fact that assumptions must be made concerning the

trial court’s intentions underscores Petitioner’s failure to raise

this issue below so that the record could be properly developed

for review by this Court.

of Petitioner’s claims at the time Petitioner filed her

second amended claim, and there was no need for the

trial court to convert Respondents’ responsive pleading

into a motion for summary judgment. Thus, even if Peti-

tioner had pressed her due process claim in the trial court

and the trial court had passed upon Petitioner’s due

process issue, there was ample basis for the Alabama

Supreme Court to distinguish Petitioner’s situation from

the Hales decision.?

II. QUESTIONS TWO AND THREE - Equal Protection

and Seventh Amendment Arguments

A mere review of questions two and three which

Petitioner poses as equal protection and Seventh Amend-

ment issues reveals the true nature of Petitioner’s argu-

ments. Petitioner simply is unhappy with the decisions

rendered by the trial court and the Alabama Supreme

Court concerning her malicious prosecution claim, and

2 Petitioner appears to alternatively argue that the trial

court did not convert Respondents’ motion to strike into a

motion for summary judgment, but instead granted summary

judgment as to Petitioner’s first amended complaint without

considering the allegations contained in Petitioner’s second

amended complaint. However, this again assumes that the trial

court allowed Petitioner’s second amended complaint. More-

over, as noted earlier, the Alabama Supreme Court did consider

the allegations in Petitioner’s second amended complaint and

the supreme court specifically determined that those allegations

could not support a cause of action against the Respondents.

[Pet. for Cert. App. at 4-5.] Therefore, any error by the trial court

in failing to consider the allegations of Petitioner’s second

amended complaint was harmless and could not constitute a

violation of Petitioner’s due process rights.

Petitioner wishes to reargue that claim to this Court.

Question two ostensibly raises an equal protection ques-

tion that is actually illusory. Petitioner incorrectly states

the Alabama Supreme Court’s holding in an attempt to

create some type of conflict with a decision of the

Supreme Court of Kansas.* However, even if the law in

Alabama differed from the law in Kansas concerning the

elements of a malicious prosecution claim, that difference

cannot create a federal question for this Court to review.

Likewise, the supposed constitutional challenge

posed in Petitioner’s question three is wholly without

merit. In the first place, the Seventh Amendment has no

applicability to this case since it was not incorporated

into the Fourteenth Amendment and applied to state

procedures. Hardware Dealers Mutual Fire Ins. Co. v. Glid-

den Co., 284 U.S. 151 (1931). Furthermore, the grant of a

summary judgment under Alabama procedure does not

deny any jury trial rights. Alabama has adopted the

equivalent of Federal Rule 56 governing summary judg-

ment procedure. See Ala. R. Civ. P. 56. The constitu-

tionality of the Federal Rules of Civil Procedure

governing summary judgment is not in question. Cf. Per-

nell v. Southall Realty, 416 U.S. 363, 384 (1974); see also Ex

3 Petitioner concludes that “Alabama abandoned over 100

years of case law when it decided that malice may not be

inferred by a want of probable cause.” [Pet. at 17.] However, the

Alabama Supreme Court made no such determination in its

opinion. The supreme court simply determined there to be no

evidence of malice in this case. [Pet. for Cert. App. at 5-6.]

Petitioner’s conclusion is apparently based on her unilateral

and unwarranted view that there was “unrefuted” evidence of

want probable cause.

Parte Peterson, 253 U.S. 300, 309-10 (1920); Port of Palm

Beach District v. Goethals, 104 F.2d 706, 709 (5th Cir. 1939).

Consequently, Petitioner fails to raise a federal question

under question three.

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,