Brief of Respondent in Opposition — Evans Production Corp. v. Shaw (No. 171)

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No. 1c |

In tie

Supreme Court of the United States

EVANS PRODUCTION CORPORATION,

Petitioner,

ev’.

Don J. SHAW,

Respondent:

‘Petition fora Writ of Certiorari to the

United States Court of Appeals

for the Fifth: Circuit 4

BRIEF OF RESPONDENT IN OPPOSITION

GEORGE S. TERRY,

FRANK J. SCURLOCK, -

2400 Republie Natjonal Bank

Building,

Dallas 1, Texas,

Attorneys for Respondent,

WARLICK LAW INC -~2263 VALOINA STREET DAL. LAS—R! 1.6711

1AM RS , BROWNS

—_—_$——————————

GENERAL INDEX

Opinion

Comments on Questions Presented by Petitioner

Statement of the Case

Argument

Of No Gerieral Importance

Lecal Law

Weighing Evidence

Rule 51 and Requested Instructions

Conclusion

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coon & Nm wo

ii - List of Authorities

Appalachian Power Co. v. American Institute of

C. P.A., 80S. Ct. 16, 18

Ellisor v. Kennedy, Tex. Civ. App., 128 S. W. 2d 842,

844 (ref. 1939) ea

Erie R. Co. v. Tompkins, 304 U. S. 64, 58 S.Ct. 817

Federal Trade Commission v- Standard Oil Co.,

355 U.S. 396, 400, 78'S. Ct. 369, 371

_ Gibson v. Lockheed Aircraft Service, 350 U. S. 356,

768. Ct. 366 | ;

- Hillsborough TP. v. Cromwell, 326 U. S. 620, 629,

66S. Ct. 445, 451

Layne & Bowler Corp. v. Western Well Works,

261 U. S. 387, 393, 43 S. Ct. 422, 423

MacGregor v. State Mut. Life Assur. Co.,

315 U.S. 280, 62 S. Ct. 607

McBride v. Toledo Terminal Railroad Co.,

354 U.S. 517, 77S. Ct. 1398 °

McDonald v. Jarka, 2 Cir 144 F. 2d 53

ov

6

6

6

National Labor Relations Board v. Pittsburg S.S. Co..

340 U. S. 498? 502, 71S. Ct. 453, 456

Neece v. A.A.A. Realty Co., 322 S. W. 24 597

(1959 Sup. Ct.) ?

Pace Corporation v. Jackson, 155 Tex. 179.

284 S. W. 2d 340, 344 11955)

Rosenfield v. Curtis Pub. Co., 2 Cir., 163 F. 2d 660

Steele v. Genera! Mills, 329 U. S. 433, 439,

67S. Ct. 439, 442 |

Tom v. Roberson, Tex. Civ. App., 182 S. W. 698,

- 700 (ref. 1916)

6

In the :

Supreme Court of the United States

EVANS PRODUCTION CORPORATION,

sa Petitioner,

v. *

Don J. SHAW,

: Respondent.

Petition fora Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF OF RESPONDENT IN OPPOSITION

This brief in opposition is filed on behalf of the Respond-

ent, Don J. Shaw.

OPINION

The’ Opinion of the United States Court of Appeals for

the Fifth Circuit is reported in 274 F. 2d 313, and is copied

at pp. 21 to 33 of the Petition.

2

COMMENTS ON QUESTIONS PRESENTED

BY PETITIONER

With respect to quéstion 1, Petitioner states, “the record

shows that such requested additional instructions were

_ discussed by the Court with counsel for both parties.”

Respondent contradicts this s tatement. The record posi-

tively does not show that the requested instructions were

discussed. (R. 280.)

By questions 2 and 3, Petitioner complains that the dis-

trict court submitted to the jury “over objection, a special

interrogatory.”

z

That statement can only be true in the event Petitioner's

two motions for judgment ean be construed or regarded as

an “objection.” The Petitioner never at any time specifically

objected to either of the two special interrogatories which

were submitted to the jury. .

_ Under “specifications of error to be urged,” Petitioner

states that with respect to one of the interrogatories sub-

mitted to the jury there was “no evidence, ” and with respect

to the other interrogatory that “the ey idence Was uncontro-

verted.”

STATEMENT OF THE CASE

Respondent agrees that the issue in‘the case is the inter-

pretation of the stock purchase letter agreement of May 28,

1953,-which is set out in full in both the Opinion and the

Petition.’

3

The letter agreement provides in paragraph (1) that

after the expiration of a certaim period of time, the Peti-

tioner would repurchase from the Respondent the stock at

its book value, “plus a value of $.50 a barrel for proven oil

reserves of the Company.” It is this clause which ¢reated

the problem for the parties and the courts. The Petitioner

has always contended that the 50¢ per barrel was to be

prorated on the basis of stock ownership, whereas, Respond-

ent has always contended that he- was to receive 50¢ per

barrel on all of the oil reserves. —

At the pretrial conference, the district court concluded

that the letter agreement was ambiguous, and this conclu-

sion is evidenced by the {act that the two special issues,

which were ultimately submitted to the jury, are embodied

in the very complete and comprehensive pretrial order. (R.

42-59.) At the trial, both parties introduced extrinsic evi-

dence. The court overruled both of Petitioner’s motions for’

judgment (R. 222, 280), thus indicating that it was still of

the opinion that the agreement was ambiguous and, further,

that the evidence was in conflict. Petitioner filed a motion

in accordance with Rule 50(b); and finally, a motion for

a new trial, both of which were overruled. Before the mo- ~

tion for new trial was considered by the trial judge, the

evidence had been transcribed and the trial judge stated

that he had read it. (R. 385.) This explanation is made in

order to emphasize the very careful attention given the case

in the district court.

The court’s charge to the jury was 100 in writing.

(R. 295.) Petitioner did not specifically object to anv part

4

of the charge, however, it did request the court to submit

five special instructions: (See p. 17 of Petition.) Actually,

there is very little difference between the court’s charge and

the requested instructions, Therefore, the court made the

following notaticn on each request.

“The defendant's foregoing request for instruction

was this the 10th day of February, 1959, refused, ex-

cept insofar as covered in the Court’s Charge.” (R.

366-370.)

The Petitioner did not, in keeping with Rule 51, make

any objection to the action of the court.

The Court of Appeals held that the trial court.did not

err in submitting the case to the jury, and it is most sig-

nificant that the Court of Appeals held that independent of

the jury verdict, the letter agreement is subject to the inter-

pretation contended for by the Respondent. ( Petition, p. 26.)

It is also significant to note that the Court of Appeals |

holds that the trial court's charge to the jury is adequate.

(Petition, p. 31.)

ARGUMENT

A casual examination of the Petition discloses that this

cage does not meet the requirements of Rule 19 of this

Court. Only elementary local law and procedural points are

involved. io

OF NO GENERAL IMPORTANCE

There are reported cases involving stock purchase agree-

ments, but this case is unique in -that the letter agreement

.of May 28, 1953, has tacked onto it the clause, “plus a value

of $.50 a barrel for proven oil reserves of the Company.”

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i)

During the course of this litigation, neither side cited a case

which in any way resembles this case. Therefore, this is not:

a case “involving principles, the settlement of which is of

importance to the public, as distinguished from that ef the

parties.” Layne & Bowler Corp. v. Western Well Works,

261 U.S. 387, 393, 43 S. Ct. 422, 423; National Labor

Relations Board v. Pittsburg SS. Co., 340 U.S. 498, 502, 71

S. Ct. 453, 456.

LOCAL LAW

This is a diversity case and, therefore, the court is re-

- quired to follow the law as announced by the appellate

courts of -Texas. Erie R. Co. v. Tompkins, 304 U.S. 64, 58

S. Ct. 817. In Texas it is the responsibility of the court to

determine if an agreement is ambiguous, and having made

such determination, it is proper to permit the introduction .

of extrinsic evidence. If the evidence is in conflict. then

disputed fact issues are submitted to the jury. Based on the

jury verdict, the court construes the agreement. The district

court followed this procedure and its action was affirmed

by the Court of @rc# Appeals. Ellisor v. Kenne@y, Tex. Civ.

App., 128 S. W. 2d 842, 844 (ref. 1939); Neece v. A.A.A.

Realty Co., 322 S. W. 2d 597 (1939 Sup. Ct.); Pace Corpo-

ration v. Jackson, 155 Ter. 179 254 S. W 2d 340, 344

(1955); Tem v. Roberson, Ter. Civ. App., 182 S. W. 698,

700 (ref. 1916).

. The three Texas cases cited by Petitioner at p. 12 of its

Petition are in accord with the cases cited above.

6°

teele v. General Mills, 329 U.S. 433, 439, 67 S. Ct. 439,

ey N

“The Circuit Court of Appeals has not disagreed

with this holding of the District Court sitting in Texas.

‘Under these circumstances we shall leave undisturbed

the interpretation placed upon purely local law by a

Texas federal judge.”

See also MacGregor v. State Mut. Life Assur. Co., 315

U. S. 280, 62 S. Ct. 607; Hillsborough TP. v. Cromwell, 326

U.S. 620, 629, 66 S. Ct. 445, 451; Appalachian Power Co.

v. American Institute of C. P. A., 80 S. Ct. 16,.18.

WEIGHING EVIDENCE

With respect to Special Issue 1, the Petitioner says the

‘evidence was not in conflict: and with respect to Special

Issue 2, the Petitioner says there was no cvidence to sup-

port the verdict of the jury. :

In order for this Court to pass on these two points it

would require a very detailed study and analysis of the evi-

dence contained in the record. This Court is not expected

to weigh the evidence in a vase of this character. McBride v.

Toledo Terminal Railroad Co., 354 U.S. $17, 77 S. C& 1398:

Federal Trade Commission v. Standard Oil Co., 355 U. S.

396, 400, 78 S. Ct. 369, 371.

RULE 51 AND REQUESTED INSTRUCTIONS

In connection with Petitioner’s requested instructions: to

~ the jury, it is very obSious that it did not follow that part }

of Ryle 51 reading:

“No party may assign as error the giving or the

- failure to give An instruction unless he objects thereto

7

before the jury retires to consider its verdict, stating

distinctly the matter to which he objects and the

grounds of his objection.”

The Court of Appeals held that Petitioner did not comply

with Rule 51. Petitioner further states that the holding is

in conflict with Swinney v. United Feature S yndicate, Inc.,

2 Cir., 129 F. 2d 904, and Williams v. Powers, 2 Cir., 135

F, 2d 153. It is respectfully submitted that an analysis of

‘those two opinions will not disclose a, conflict. Respordent’s

contention is Supported by subsequent decisions of the Sec-

ond Circuit, as follows: McDonald v. Jarka, 2 Cir.,-144 F.

2d 53; Rosenfield v. Curtis Pub. Co., 2 Cir., 163 F. 2d 660.

Subsequent to the date of the two decisions of the Second

Circuit. cited by Petitioner, Justice Frankfurther of this

Court made an examination of 118 decisions involving Rule

- 51, and concluded there was no “conflict and confusion.”

Gibson v. Lockheed Aircraft Service, 350 U. S. 356, 76 S.

Ct. 366. .

Appalachian Power Co. v. American Institute fC. PA.

80S. Ct. 16, 18:

“But 6rdinarily an application by a District Court:

of the Rules of Civil Procedure when affirmed by the

Court of Appeals will not-be reviewed by this Court.

This is particularly true where, as here, the question

is one that concerns the judgment of the District Judge

in relation to a particular set of facts.”

It is respectfully submitted that the Petition for writ of

certiorari is frivolous, does not purport to meet the require-

- ments of Rule 19, and does not have the semblance of merit.

The filing of the Petition has, and will, delay, by several

8

months Respondent's collection of the judgment. Rule 56

was designed for cases of ‘this character. and Respondent

respectfully submits that in addition to interest, he should

be awarded damages by this Court.

WHEREFORE, Respondent prays that the Petition for.

writ of certiorari be denied and that he may be awarded .

damages for delay as contemplated by Rule 56.

Respectfully submitted,

° GEORGE S. TERRY, -

FRANK J. SCURLOCK, ,

2400 Republic National Bank

Building,

Dallas 1, Texas,

Attorneys for Respondent.

A copy of the foregoing brief in opposition’ was on this

_ the day of , 1960, mailed to Car-

rington, Johnson & Stephens and Hubert D. Johnson, Mer-

cantile Ran!: Building, Dallas, Texas: R. G. Storey, Robert

M. Martin, and Storey, Armstrong & Steger, Republic Na-

tional Bank Building, Dallas, Texas.

SO a I eee