Hough v. Leonard

HODGES, Chief Justice,

with whom SIMMS, J., joins, concurring in part and dissenting in part:

I respectfully dissent to the majority’s resolution of the issue of jurisdiction.

As to the issue of jurisdiction, in Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958), at page 253, 78 S.Ct. at pages 1239-40 the United States Supreme Court set out the following rule:

The unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum State. The application of that rule will vary with the quality and nature of the defendant’s activity, but it is essential in each case that there be some act by which the defendant purposefully avails itself of the privilege of conducting activities with the forum State, thus invoking the benefits and protections of its laws....

*447The only acts that the defendants, who are not residents of Oklahoma, committed in Oklahoma were to call Mike Jones to hire him to remove a stuck packer from an oil and gas well in Kansas. Mr. Jones then contacted the plaintiff to whom he subcontracted the work. Later, one of the defendants called the plaintiff requesting a bid for work on the same well. The plaintiff sent the bid to the defendants. The defendants then called to accept.

The only other contact of the defendants with Oklahoma is that one of the defendants owns interests in oil and gas leases in Oklahoma. It is undisputed that these interests are not a part of this suit. Without more, the ownership of property in the State does not support this State’s jurisdiction over litigation unrelated to the property. See Schaffer v. Heitner, 433 U.S. 186, 209, 97 S.Ct. 2569, 2582, 53 L.Ed.2d 683 (1977). After reviewing all the facts, I must agree with the Court of Appeals’ finding that the district court lacked jurisdiction over the defendants.

SIMMS, Justice,

concurring in part, dissenting in part:

I dissent to Part I for the reasons set forth by the Supreme Court of the United States in Helicopteros Nacionales De Colombia, S.A v. Hall, 466 U.S. 408, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984), and join Chief Justice Hodges in his writing. I also concur in Part II of the majority opinion.

OP ALA, Justice,

with whom WATT, J., joins, concurring in part and dissenting in part.

While I concur insofar as the opinion holds that the trial court correctly exercised in personam jurisdiction over the non-residents, I dissent from the court’s revision of Rule 3.15.1 Today’s amendment relieves the cer-tiorari respondent of telling this court what would remain to be reviewed in the case if certiorari overturned the Court of Appeals’ pronouncement on some dispositive issue. The court should never reach for consideration or remand any issue left unaddressed by the Court of Appeals’ jurisprudence unless the certiorari respondent argues — either in the response to the petition2 or in a brief on certiorari3 — that the issue which went unresolved by the intermediate court would, if decided, make the Court of Appeals’ result correct.4 My counsel today is against giving respondents the benefit of arguments they did not raise in the certiorari process and rewarding their silence.

I.

OKLAHOMA’S REVIEW ON CERTIO-RARI — WHICH IS GRANTED ONLY FOR SPECIAL AND IMPORTANT REASONS — SHOULD BE AS NARROW AS THAT BY THE UNITED STATES SUPREME COURT

In the exercise of its certiorari jurisdiction, the United States Supreme Court does not *448use the process to dispense individual relief. Rather, it devotes its scarce judicial resources to deciding important questions and to achieving uniformity in the body of federal law.5 Oklahoma’s certiorari review should remain similarly structured.6 In this state’s two-tiered review system error-correcting is the mission of the court of initial review while this court’s responsibility stands confined to developing the law through a prudent use of cutting-edge certiorari jurisprudence.'7

Today’s rule revision mil transform cer-tiorari into bringing whole cases for error-correcting. An adoption of my counsel would preserve a narrow scope of certiorari review to facilitate this court’s unique law-development role. •

II.

ISSUES RAISED ON APPEAL AND LATER ABANDONED ON CERTIORARI SHOULD NOT BE REACHED FOR REVIEW

The Nation’s highest court ordinarily will not consider questions the parties have not raised8 nor those which have been incorrectly presented.9 This court also has refused to assume counsel’s responsibility for advocating the cause.10 Issues on certiorari are framed by the petition for that writ.11 An *449issue tendered on appeal but not reasserted on certiorari stands abandoned.12 An abandoned issue is sapped of potency for viable judicial relief; it mil not be reached for resolution sua sponte.13

Today’s rule revision creates a double standard. What is required of the petitioner is relaxed for certiorari respondents who fail to protect their client against the always predictable contingency that the Court of Appeals’ opinion might be vacated and issues which were not reached by the intermediate tribunal would go unreviewed. Although an aggrieved party’s certiorari petition supersedes all prior pleas for corrective relief on review,14 today’s revised rule bestows the legally unwarranted largesse of affording respondent sua sponte review of all issues unaddressed by the Court of Appeals, whether tendered or untendered to this court by the losing litigant’s advocacy.15 The same standards should be applied to all parties; questions not reasserted on certiorari must stand beyond the reviewing cognizance of either court.

Rules of adversary advocacy must apply with the same force at every stage of review.16 The appellant initially bears the duty to overcome the presumption of correctness that attaches to the trial court’s decision;17 the victorious appellee bears the burden of defending his earlier nisi prius triumph.18 Because the very same presumption of correctness is attached to an intermediate court’s decision, a certiorari respondent bears the burden of defending the favorable pronouncement. Appellate courts do not engage in a search for some theory which has not been raised by counsel to find a valid ground for reversal of a nisi prius judgment,19 A law-developing court should never burden itself with post-decisional screening duties to run a rescue mission for lawyers who, for lack of foresight, failed to press conditional or alternative arguments to advocate the resulting correctness of intermediate court’s jurisprudence.20

Although without a timely-filed certiorari petition of its own, no party will be permitted *450to secure vacation or modification relief, any party may defend against another party’s quest for certiorari by pressing those errors in the Court of Appeals’ pronouncement which, when rectified, would sustain that court’s decision as correct in its result.21 A certiorari respondent who brings no counter-petition stands in a posture restricted to the defense of the relief granted, but nothing prevents that party from offering arguments in support of the reliefs correctness.22

To the extent Johnson v. Wade23 teaches that any party, whether “winner” or “loser” in the Court of Appeals, must petition for certiorari to ensure review of issues raised and briefed on appeal, it is concededly over-broad. A counter-petition for certiorari is required only if the respondent seeks to enlarge its own rights or diminish those declared by the decision in favor of the petitioner/24 The court paints with too broad a brush when it overrules Wade in toto by fashioning a new rule that brings up an entire case.

This court has long been committed to the principle that claims to error for which there is no support in argument or authority are deemed abandoned25 Today’s opinion sub silentio carves out an exception for certiorari respondents. The revised rule announces the court’s willingness to comb sua sponte through the record and briefs for any issues left unaddressed by the initial process of review.

SUMMARY

In sum, I remain committed to the traditional rules of common-law appellate advocacy. These require an appellee-respondent to defend against an appellant-petitioner’s effort to pierce the law’s presumption of correctness which attaches to every pronouncement of every court.26 Today’s rule revision throws to the wind all time-honored safeguards of orderly process by inaugurating a reward regime for an advocate’s silence. The court unmistakably pledges to the Bar that it will sun sponte search for and consider issues which certiorari respondents have failed to press. I must recede from this notion. I would require the parties — who were successful in the Court of Appeals and who have no reason to seek certiorari review — to identify all those issues left unaddressed by the Court of Appeals which remain viable and should be considered either by this court or be reviewed on remand. Certiorari must be kept as a narrow, issue-focused process rather than be transformed into a whole case review.

. The text of Rule 3.15, 12 O.S.1991, Ch. 15, App. 3, Rules on Practice and Procedure in the Court of Appeals and on Certiorari to that Court, which the court's opinion adopts today is:

“When a petition for writ of certiorari to review a decision of the Court of Appeals is granted, an order shall be entered to that effect. Issues not presented in the petition for certiorari will not be considered by the Supreme Court. Provided, however, if the Court of Appeals did not decide all of the properly preserved and briefed issues, the Supreme Court may — should it vacate the opinion of the Court of Appeals — address such undecided matters or it may remand the cause to the Court of Appeals for that Court to address such issues. The case will then be decided on the reviewable issue or issues presented in the briefs theretofore filed, unless for good cause the filing of additional briefs be then allowed.” [Emphasis supplied.]

. Rule 3.14 E, 12 O.S.1991, Ch. 15, App. 3, Rules on Practice and Procedure in the Court of Appeals and on Certiorari to that Court, provides in pertinent part:

"The petition shall be served upon the respondent who may within ten (10) days thereafter file and serve upon the petitioner an answer in opposition to petition which shall be succinct and shall not exceed in length, ten ... pages.” [Emphasis supplied.]

. When a petition for certiorari has been granted, this court may permit the parties to file additional briefs. See Rule 3.15, 12 O.S.1991, Ch. 15, App. 3, Rules on Practice and Procedure in the Court of Appeals and on Certiorari to that Court, supra note 1.

. A lower court's judgment may be affirmed even though the wrong reasons were given for the decision. Hill v. Young, 134 Okl. 99, 274 P. 24, 25 (1928).

. See Wright, Miller, Cooper & Grossman, Federal Practice and Procedure, Jurisdiction and Related Matters § 4004 at 517 (1977). To conserve its scarce judicial resources the United States Supreme Court sometimes limits its review to specified questions, although restricted grants are a relatively small percentage of the total cases reviewed. Wright, supra at 516.

Although this court seldom limits certiorari review to predesignated issues, parties should not mistakenly assume that it will take over counsel’s role of advocacy. We have refused to consider issues briefed but not raised in the petition for certiorari. See the authorities infra note 11.

. 20 O.S.1991 § 30.1; Rule 3.13 A, 12 O.S.1991, Ch. 15, App. 3, Rules on Practice and Procedure in the Court of Appeals and on Certiorari to that Court. The pertinent terms of § 30.1 are:

■ "A decision of the Court of Appeals may be reviewed by the Supreme Court if a majority of its Justices direct that certiorari be granted -” [Emphasis supplied.]

The pertinent terms of Rule 3.13 A are:

"A review of an opinion of the Court of Appeals in the Supreme Court on writ of certiora-ri as provided in 20 O.S.1971 § 30.1 is a matter of sound judicial discretion and will be granted only when there are special and important reasons and a majority of the justices direct that certiorari be granted ...." [Emphasis supplied.]

. The pertinent terms of Rule 3.13, Rules on Practice and Procedure in the Court of Appeals and on Certiorari to that Court, 12 O.S.1991, Ch. 15, App. 3 are:

"The following, while neither controlling nor fully measuring the Supreme Court’s discretion, indicate the character of reasons which will be considered:
"(1) Where the Court of Appeals has decided a question of substance not heretofore determined by this court;
"(2) Where the Court of Appeals has decided a question of substance in a way probably not in accord with applicable decisions of this court or the Supreme Court of the United States; "(3) Where a division of the Court of Appeals has rendered a decision in conflict with the decision of another division of that court;
"(4) Where the Court of Appeals has so far departed from the accepted and usual course of judicial proceedings or so far sanctioned such procedure by a trial court as to call for the exercise of this court’s power of supervision.” [Emphasis supplied.]

. The importance of a brief in opposition to a petition for a writ of certiorari is twofold: it not only assists the court in the exercise of its discretionary jurisdiction, but also helps to frame the issues that properly would be before the court if certiorari were to be granted. See U.S.Sup.Ct. Rule 15, 28 U.S.C.A.

. Illustrative of the United States Supreme Court’s general rule against consideration of questions not, or not correctly, raised by the parties are Tacon v. Arizona, 410 U.S. 351, 352, 93 S.Ct. 998, 999, 35 L.Ed.2d 346 (1973) (issues raised for the first time in that court); Adickes v. S.H. Kress & Co., 398 U.S. 144, 148 n. 2, 90 S.Ct. 1598, 1602 n. 2, 26 L.Ed.2d 142 (1970) (issues which are neither raised before nor considered by the United States Court of Appeals ); Andrews v. Louisville & N.R. Co., 406 U.S. 320, 326, 92 S.Ct. 1562, 1565, 32 L.Ed.2d 95 (1972) (constitutional questions not raised by the parties). The rule is not completely without exception. See Silber v. United States, 370 U.S. 717, 718, 82 S.Ct. 1287, 1288, 8 L.Ed.2d 798 (1962). See also, Annotation, What Issues Will the Supreme Court Consider, Though Not, Or Not Properly, Raised by the Parties, 42 L.Ed.2d 946 (1975).

. See, e.g., Mead v. Mead, Okl., 301 P.2d 691, 694 (1956).

. Cunningham v. Public Service Co., Okl., 834 P.2d 974, 979 (1992) (Opala, J., dissenting); Matter of S.C., Okl., 833 P.2d 1249, 1252 (1992); *449Matter of D.D.F., Okl., 801 P.2d 703, 709 (1990); Ford v. Ford, Okl., 766 P.2d 950, 952 n. 1 (1989). See Mitchell v. Ford Motor Credit Co., Okl., 688 P.2d 42, 44 (1984).

. Cunningham, supra note 11 at 979; Matter of S.C., supra note 11 at 1252; Matter of D.D.F., supra note 11 at 709; Ford, supra note 11 at 952 n. 1.

. Ford, supra note 11 at 952 n. 1.

. See Cunningham, supra note 11 at 980.

. The Supreme Judicial Court of Massachusetts, whose appellate structure is not unlike our own, has sounded a warning that a prudent party who prevails in the appellate court should, on certio-rari, consider his/her position to be essentially the same as that before the intermediate court. Those who do not address in the response or brief all successive or alternative contentions incur a clear risk that the unaddressed issues will not be reached for consideration. Ford v. Flaherty, 364 Mass. 382, 305 N.E.2d 112, 116 (1973).

. An exception to strict compliance with the rules of appellate advocacy is sometimes made for public-law controversies, where this court is free to determine the cause as it sees fit based upon the law and the fact. Simpson v. Dixon, Okl., 853 P.2d 176, 187 n. 55 (1993); Reynolds v. Special Indem. Fund, Okl., 725 P.2d 1265, 1270 (1986); Burdick v. Independent School Dist., Okl., 702 P.2d 48, 54 (1985); McCracken v. City of Lawton, Okl., 648 P.2d 18, 21 n. 11 (1982); Application of Goodwin, Okl., 597 P.2d 762, 764 (1979); Special Indemnity Fund v. Reynolds, 199 Okl. 570, 188 P.2d 841, 842 (1948). No public-law issues are raised by the case here for review.

. Peters, infra note 25 at 331; Mead, supra note 10 at 694; Douglas v. Martin, 204 Okl. 264, 228 P.2d 1021, 1023 (1951); Wilhite v. Brin, 178 Okl. 339, 62 P.2d 1240, 1241 (1936).

. Rule 1.14, Rules of Appellate Procedure in Civil Cases, 12 O.S.1991, Ch. 15, App. 2, commands that appellee shall file a response to the petition in error. An answer brief is required by Rule 1.28. While reversal of a nisi prius decision is never automatic for failure to file an answer brief, if the appellant has overcome the presumption of correctness of the trial court’s decision, the burden of its defense shifts to appellee. See, e.g., City of Tulsa v. Stroud, 181 Okl. 525, 75 P.2d 434, 435 (1938); Buellesfeld v. Swaim, 66 Okl. 302, 168 P. 1166 (1917). See also, Needham v. Hays, Okl., 431 P.2d 441, 442 (1967).

. See Mead, supra note 10 at 694.

. This court's rescue missions for deficient lawyers have met with my disapproval in the past. See, e.g., Bane v. Anderson, Bryant & Co., Okl., 786 P.2d 1230, 1239 (1990) (Opala, J„ concurring in part and dissenting in part.)

. Woolfolk v. Semrod, Okl., 351 P.2d 742, 745 (1960); see Oklahoma Water Resources Bd. v. Texas County, Okl., 711 P.2d 38, 67 n. 48 (1984); Matter of Estate of Bradshaw, Okl., 606 P.2d 578, 580 (1980); Nilsen v. Tenneco Oil Co., Okl., 614 P.2d 36, 39 (1980); Short v. Guy Nall Trucking Co., Okl., 442 P.2d 497, 499 (1968); Great American Reserve Ins. Co. of Dallas v. Strain, Okl., 377 P.2d 583, 589 (1963); American Nat. Bank v. Ardmoreite Pub. Co., 123 Okl. 225, 253 P. 81, 83 (1927); Bruner v. Eaton, 121 Okl. 209, 249 P. 734, 735 (1926); Muskogee Refining Co. v. Waters-Pierce Oil Co., 89 Okl. 279, 215 P. 766, 767 (1923). See also, Annotation, Effect of Party's Failure to Cross-Appeal on Scope of Appellate Review As To Contentions of a Party Relating to Judgment Below — Supreme Court Cases, 63 L.Ed.2d 911 (1980).

. May v. May, Okl., 596 P.2d 536, 540 (1979).

. Okl., 642 P.2d 255, 257 (1982).

. See the authorities supra notes 21 and 22.

. Hadnot v. Shaw, Okl., 826 P.2d 978, 981 (1992); Holbert v. Echeverria, Okl., 744 P.2d 960, 962 n. 4 (1987); Messler v. Simmons Gun Specialties, Inc., Okl., 687 P.2d 121, 129 n. 11 (1984); Peters v. Golden Oil Co., Okl., 600 P.2d 330, 331 (1979); Harley v. Jobe, 207 Okl. 296, 249 P.2d 468, 469 (1952); John Deere Plow Co. v. Owens, 194 Okla. 96, 147 P.2d 149, 153 (1944).

. See the authorities supra notes 4 and 10.