# Petition — Wilson v. Biccum > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1980%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1977 - **Citation:** 434 U.S. 831 ## Text IN THE Supreme Court of the United States OCTOBER TERM, 1976 phe 76°1746 MARY ELIZABEsH WILSON, Plaintiff-Petitioner, versus ROBERT W. BICCUM, et al, Defendants-Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT WM. ROBERTS WILSON, JR. ATTORNEY FOR PLAINTIFF-PETITIONER P. O. Box 1507 Pascagoula, Mississippi 39567 ORAL ARGUMENT REQUESTED SCOFIELOS’ QUALITY PRINTERS, P O BOX 63006,N 0. LA 70163 604/8622.161) o's Yi ne : : besa | 7 on Cea - 2 ’ 7 ¢ 4 ~ v a ae ae Pats a, a, we, a - : oe | ; | : a4 . 7 . va | | Same aera ei TABLE OF CONTENTS Page Table Of CaSOS .....ccccccereeeeeennneeeseeennnreeees i Reference and citation to official and unof- ficial reports of the opinions delivered in COUTTS DOLOW .... cc cece c rere eee eeeennnenenneeeeee 1 Jurisdictional statement and relevant dates Of FULINGS . 0... cee eee cere renee enenneeenenneeneee 1 Questions presented for review ......eereeereeeees 2 Statutes involved ......... cece eee renee eeeeeeeeee 3 Statement of the CASE ....... cece eeeeeeeeeeeeeerees 5 ATGuMent ...... cc ereceeeeeereeeneneneeneeeaneneess 9 CONCIUBION oo... ccc cece cece eee eeeeeeeeenneenneeeees 58 APPENDIX Complaint ......:.ceeceeeereeeenenneneeeeeeneaeess la District Court’s Opimion ..... cc ccree eee ee eeeees 25a U. 8S. Court of Appeals’ Opinion .......eerreeeees 32a Form Letter Denying Petition for Rehearing .... 33a TABLE OF CASES Ames v. Vavreck, (1973 DC Minn) 356 F Supp rrr PF errrrrrrTrrii Ti tre ee 55 Adickes v. Kress, 398 US 144 (1970) ....-eeeeeeees 22 Barbier v. Connolly, 113 US 27, 31 (1885) ......-.. 15 Beechley v. Mulville, (1897) 102 lowa 602, 70 NW 107, 71 NW 428 on. cece cece cece e renee nennee 45 Bliss v. Southern Pacific Company, (Ore) 321 BP Od BBA nnn ccccccccccvcvcccccccvcceenesvvesecess 42 ii TABLE OF CASES (Continued) Page Blumenthal v. U. S., 332 US 539, 557, 68 SC 248, O2 L, Bd 154 (1047) ....cccccseccvccvvvevvevcesecs 32 Boddie v. Connecticut, 461 US 371 (1971) ......... 15 Bricker v. Sceva Speare Memorial! Hospital, 339 F Supp 234 (1972) 0... .. ccc ceeeee eee ennnees 54 Burchette v. Bower, 355 F Supp 1278 (DC Ariz IOTE) nccccccccccvcvccvcccccccscccccsscsccesevecess 54 Bush Construction Company v. Walters, 179 Be OE IBD oo cccccvcscdecccevecceccocgeseesaseqnes 52 Cameron v. Brock, 473 F 2d BOB... ccc cece eens 35 Campbell v. Beto, (5 CCA 1970) 460 F 2d 765 _ ..... 15 Chambers v. Baltimore & Ohio Railway, 207 US 148, 148 (1007) ...cccccccccccccvccccsscvvvvces 15 C. I. T. Corporation v. Turner, 157 So 2d 648 ..... 52 City of Boston v. Simmons, (1890) 150 Mass. 481, BB OTE BAD nncccccecccceccccccovvpiccesovcces 45 Continental Turpentine & Rosin Company v. Gulf Naval Stores, Company, 141S0 2d200 ..... 52 Delli Paoli v. United States, 352 U.S. 232, 236, 77 SC 219, 1 L, Ed 274 (1957) nce ccc cece cece eens 32 Delz v. Winfree, (1891) 80 Tex 400, 16SWi111 ..... 45 Frazier v. East Baton Rouge Schoo! Board, 363 F 2d 861 (5 CCA 1966) on... cece cece cere eens 54 Frey & Sons, Inc. v. Cudahy Packing Co., 256 CIS BOD, BAFBED o avec scasccsccvicccvvcccseneownes 33 Garraway v. Retail Credit, 240 Miss. 230, 126 So 2d 271 (1961) GARRAWAY I .........645. 22,50 iii TABLE OF CASES (Continued) Page Garraway v. Retail Credit, 141 So 2d 727 EE 8,28,47,51 Griffin v. Breckinridge, 403 U.S. 88, 102-03 i ae erithiseceeweecbcneeccccanes 9,24,25,35,44 Grisom v. Logan, DC Calif 1971, 334 F Supp tiie iteheidecsesdheeseeese sees cae as 44 SE WH, Ecc ccc ccc cccrecdevceddcceces 44 Huey v. Barloga, DC Ill. 1967, 277 F Supp 864 .... 44 Hudgens v. Chamberlane, (1911) 161 Cal. 710, Leis CCl se ivesdandcccedevegdsecedcses 45 Hutton v. Waters, (1915) 132 Tenn. 527, 179SW i ccc cs whvedebbeedadecdcdcccciveccces 45 James v. Evans, 3 CCA (1906), 149 F 136,140 ..... 45 Johnson v. Bagby, 171 So 2d 327 ................. 51 Kauffman v. Moss, 420 F 2d 1270(3CCA 1969) ..... 54 Lynch v. Household Finance Corp., (1972) 405 U.S. 538, 31 L Ed 2d 424, 92 S Ct. 1113, reh. den. 406 U.S. 911, 31 L Ed 2d 822, 92 S Ct. UTP EEMCERE ER ES SGE6e.cbedccescescocceccces 31 Maclaskey v. Mecartney, 324 Ill. App. 498, 58 IE Sa b.s du binba.c tive dee ese cesces ces 34,35 Mary Wilson v. Retail Credit Company, 430 F 2d 1053 (5 CCA 1971) WILSON! ........... 47,48 Mary Wilson v. Retail Credit Company, 474 F 2d 1260 WILSON II ............0.c ce eeeeees 47,48 May v. Santa Fe Trail Transportation Co., ee inns occ eeccedncscccccecene 42 iv TABLE OF CASES (Continued) Page McLellan v. Mississiipi Power Company, 526 F 2d 870; Reh. grntd, r’vrsing 545 F 2d 919(5 ND Ory fre ee ee = ee ae 9,10,11 Miles v. Armstrong, (CA II] 1953) 207 F 2d 824 .. 44,57 Mississippi Power and Light Company v. Town of Coldwater, 234 Miss. 615, 636, 106 DO. BG GEO CHD cb vccccvacccccdévetens chutes 19 Mulligan v. Schlachter, (1968) CCA 6, 389 F 2d DE cc cdnnencdddccnussdénceskeebaashabeieetnaeanent 54 Nay v. California, (1971) CCA 9, 439 F 2d 1285, SD ctencdsscncacksadesveteaoeneestabbenis bn00b56 55 Nelson Radio & Supply Co., Inc. v. Motorola Inc., (5 CCA 1952) 200 F 2d 911 ...........-- eee 42 Northern Oil Co. v. Socony Mobil Oil Co., 368 PP OD en OE ED vc be ccteecnccncscccccocsce 54 Providence Journal Co. v. McCoy, (DC R.I. 1950) 94 F Supp 186, aff. 190 F 2d 760, cert. den. 72 SC 200, 342 U.S. 894, 96 L Ed 669 ........ 44 Robertson v. Parks, (1892)76Md118,24A4l11 ..... 45 Sanders v. State, 242 So 2d 412 ..............0005- 52 Smith v. Ross, 482 F 2d 33 (CCA €) ..........0005: 32 Southern Christian Leadership Conference, Inc. v. The A. G. Corporation, Miss., 241 es GOD cada onade ecbadvancnesbbenes cen 19,32 U. S. v. Andergom, 461 F Bd GB... cc ccc cc cccvecses 16 U. S. v. Brooks, 473 F 2d 817 (CCA Q) ..........-.+. 32 U. S. v. Jacobo-Gil, 474F 2d1213(1973CCA9) .... 32 Vv TABLE OF CASES (Continued) Page U. S. v. Johnson, 164F 2d 42, cert. den. 332 U.S. 852, 9 L Ed 421, 68 SC 355, reh. den. 33 U.S. 834, 10 L Ed 1118, 68 SC 457 .......... cee eeeeee Van Horn v. Van Horn, (1894) 56 NJ L. 318, 26 BAG centOekbe Sch cccShTinicuce estdsedagececzces 45 Westberry v. Gilman Paper Company, 60 FRD De nackddvesteasded db ec¥incdusdssctacsenceqeces 9,10 White v. White, (1907) 132 Wis. 121, 111 NW ET dh nkdusdadioes haves esissttbucesconsseceduces 45 =" To AGE RRR «Reg ore Seah) 2 Pu ae as rks he. "QE. mona, 2cneyn earth pene . (petty hex aa es ae Se. pres Basie fot aa: aba ete | we AY beets WO eel a 17 ticular and specific acts, and incorporating by ref- erence several written memoranda and acts of the defendants which were substantiated by admissions of the defendants, and which were made the basis ofa motion for partial summary judgment by the plaintiff. Plaintiff does not appeal from the order denying her partial summary judgment since plaintiff feels that a plenary trial of this cause is the only judicially accep- table method of disposing of this case. On the other hand, plaintiff feels that the judgment entered against her by the Court in favor of the defen- dants is erroneous and wrong, hence this petition. There is no doubt that the defendants acted in con- cert to hide the plaintiff's cause of action. This is set forth in the complaint on file (R-110) which enumerates at page 4 of the complaint some nine sep- arate overt acts of the defendants. Additionally, plain- tiff made reference in the complaint to the affidavits executed, by the defendants, under oath, filed in the previous law suits. (Defendants subsequently filed, with their answer, copies of the entire record in the earlier law suits, two of which are relevant. Exhibit “C” to the answer is the record in of the late William Roberts Wilson, Sr.’s suit against Retail Credit and is completely irrelevant for the purposes of this suit.) Exhibits “A” and “B” to the answer are the two suits where Mrs. Wilson’s causes of action in this suit were perfected, perfection occurring February 20, 1973 in Cause Number 72-2984 on the Fifth Circuit’s docket. The affidavits in exhibit “B” are found at pages 83, et. seq. of the record of that cause which is exhibit “B”’. ee 18 They are contained in that record as an exhibit to an af- fidavit. The same affidavits are in exhibit “A” at the foliow- ing indicated pages and are more easily located ‘n a ‘a in the copy of Plaintiff-Appellant’s brief which re- places the record (destroyed by fire in New Orleans), to-wit: Defendant Hammond at page 55, et. seq.; Defen- dant Drone at page 58; Defendant Curtis at page 60, et. seq.; Defendant Tackett at page 63, et. seq. It is submitted that the destruction of the record and the incomplete and haphazard substitute would make it easier to refer to one of the original briefs. It is practically undisputable that the defendants zealously engaged in a series of overt acts beginning in 1963 and ending as late as the Fall of 1972 which series of acts had as its sole purpose the prevention and later, vitiation, of the plaintiff's law suits for libel. It is indisputable, and was the avowed purpose, in those cases previously before the Fifth Circuit, that the purpose and objective of the various affidavits filed by the defendants in those cases had no purpose other than furthering the aim of the conspiracy, which was to deprive the plaintiff of the right to sue the Retail Credit Company. The defendants’ acts then, appear to have been de- signed specifically and solely for the purpose of deny- ing the plaintiff her day in court. This is an illegal ac- tivity and one against which plaintiff is protected by the law. et i EE ce ET A nt 19 Of course, the essence of a civil conspiracy is a con- cert or combination to defraud, or cause other injuries to person or property, which results in damages to the person or property of the plaintiff. Black's Law Dic- tionary, Fourth Edition 1951. There are two basic types of conspiracy which are actionable. First: A combination of persons to accomplish an unlawful purpose, even though they employ lawful means. That is, that even though individuals acting in con- cert and together employ perfectly legal methods for the carrying out of their conspiracy, they still are liable for civil damages when they achieve their il- legal purpose. Second: A combination of conspirators to achieve a lawful purpose by unlawful means. In other words, the second basic type of conspiracy which is actionable is that in which a combination of conspirators achieve a perfectly lawful purpose by the use of illegal and unlawful means. See Southern Christian Leadership Conference, Inc. v. The A. G. Corporation, 241 So 2d 619; Mississippi Power and Light Company v. Town of Coldwater, 234 Miss. 615, 636, 106 So2d 375 (1958), 15 CUS “Conspiracy”, §1 (p. 906); also §§8 and 9 thereof (at p. 1003 and 1006-7.) Re: both types of conspiracy. 20 In this case, plaintiff has alleged the first type of conspiracy. This action lies against defendants because they employed lawful means, to conceal the libel, which achieved the obviously unlawful end of denying the plaintiff of her right to resort to the courts for relief against the Retail Credit Company in the two earlier suits. Plaintiff was not damaged until those earlier suits had been terminated in the Court of Appeals by affir- mance of the District Court's decision dismissing each of those earlier suits. To present the case in its proper light, the plaintiff summarizes with a brief synopsis of the facts leading up to the filing of this law suit: In June of 1961 and September 1963 and in May of 1964 and at various other times, the defendants, Retail Credit Company and some of its employees, issued and concealed libelous credit reports concerning the plaintiff. The descriptions of the plaintiff contained in the reports were outlandish, although that is not the basis of this law suit. The plaintiff, becoming concerned that something might be wrong, made inquiries to several of the con- spirator defendants and was lied to on each occasion by the defendants who immediately engaged in feverish activity to conceal the fact that they had libeled the plaintiff. The defendants even resorted to clandestinely shipping the file out of the state and the jurisdiction of the Mississippi Courts to Atlanta, Georgia because “it might become a matter of con- troversy”. (See admission of Robert Biccum admit- 21 ting that the documents on pages 28-31 of the record were prepared by him, admission is of record at page 45.) Furthermore, the defendants denied that they had even investigated the plaintiff. However, the Senate Subcommittee on Anti-Trust and Monopoly of the full Judiciary Committee discovered that the defendant . had lied concerning those denials. This was dis- covered in 1968 in a Congressional investigation which turned up, for the first time, the unbelievably horrible credit reports on the plaintiff. a me Two earlier suits, one for libel and the second for | products liability, by the plaintiff against the defen- dant Retail Credit Company were dismissed because the statute of limitations problem and the technicality of failure to allege malice. This suit has been filed by the plaintiff against the separate and several defen- dants charging the separate and severai defendants with a conspiracy to concea! a cause of action for libel and slander which thereby deprived the plaintiff of a cause of action against the defendant Retail Credit Company by successfully concealing the cause of ac- tion until the statute of limitations had expired. (It be- ing determined that the statute of limitations had run by the decision of the Court of Appeals as mentioned above.) — designated as bodies corporate. Plaintiff claims jurisdiction under 42 U.S.C. §§1983, 1985 and 1986. The Court notes that these are not jurisdictional statutes, but statutes granting a cause of action once jurisdic- tion is established. The complaint is in four counts, amended to add another defendant, Bobby Gann, anda series of overt acts, each count alleging a conspiracy among the named defendants to conceal from her in- formation in Retail Credit’s files on which to base a cause of action against that firm. Sheclaims that their conspiratorial actions have impeded her from exer- cising her legal remedies as late as August 16, 1972 when this Court dismissed her last suit, Cause No. 72S-4(R). She avers that the defendants were acting under color of law in the State of Mississippi, Georgia, Tennessee and other jurisdictions in their conspiracy while protected by the qualified privilege granted by these states and this Court, allowing them to conceal from plaintiff her right to sue. She charges that Retail Credit directs its employees, under pain of dismissal, to engage in conduct with one another to deceive per- sons such as plaintiff from discovering her cause of action. She charges that unnamed customers of Retail Credit were under a written contract to conceal the contents of her credit report from her and also acted in the conspiracy with the named defendants. She charges that the individual defendants acted both un- der the directions of Retail Credit and on their own in- genious and personal initiative. She alleges that these actions were wilful, wanton and malicious entitling her to compensatory and punitive damages in the amount of $2,000,000.00 under each count. By her amended complaint, plaintiffhas alleged overt acts on the part of individual defendants over a period of time beginning October 25, 1963 to January 10, 1967, 30a consisting of intra-office memos, which she alleges were for the purpose of concealing her cause of action based on the September 13, 1963 credit report. As to the original complaint as well as to the amended complaint, defendants have denied that plaintiff has stated a claim upon which relief may be had, have denied all material allegations, have pled that the credit report of September 13, 1963, was qualifiedly privileged, that the action is barred by both the one year and six year Mississippi statute of limitations, have pled collateral estoppel and res ad- judicata by virtue of the decisions in her prior suits, and laches inasmuch as she could have asserted her conspiracy claims since the latter part of 1963, when Judge Nixon found that she admitted knowledge of her credit report. Considerable discovery has taken place, plaintiff having directed requests for admissions and in- terrogatories to all the defendants but Gann. Defendants have filed a motion to dismiss, and fora summary judgment based on the pleadings, ad- missions, answers to interrogatories and affidavits, including affidavits from all individual defendants, but Gann, that each, while employed by Retail Credit during the years 1963 and 1964 and with respect to plaintiff, were merely fulfilling their assigned duties. Plaintiff has also filed a motion for a partial sum- mary judgment on liability, supported by an allega- tion against Gann, and the affidavits and deposition of Len O. Holloway andthe affidavit of William F. Boaz to the effect that Retail Credit had a policy of requiring a Sila percentage of its investigator's reports to be derogatory. The Court has reviewed each of these documents and finds that none are relevant or material to this action. Plaintiff's affidavit in support of her motion acknowledges that all her contacts with any of the defendants were in regard to the 1963 credit report on her and a May 1964 report on her husband. Plaintiff's attorney's affidavit merely states that the proposed amended complaint, denied by this Court in Cause No. 72S-4(R) were in nature and substance, the same as the allegations here. As to defendants’ motion to dismiss and for sum- mary judgment, both are well taken. The kind of state action required under 42 U.S.C. §1983 certainly does not contemplate case law of the State of Mississippi, nor the decisions by this Court and the Fifth Circuit recognizing the case law of Mississippi. Any and all allegations alleging state action under 42 U.S.C. 1983 should therefore be dismissed with prejudice. Any and all allegations pertaining to 42 U.S.C. §1986 should be dismissed with prejudice as not occurring within one year of the time this action was filed. Section 1986 has its own one year limitation period. As to all the allegations of the amended complaint, whether related to Sections 1983, 1985 or 1986, 42 U.S.C., they are still based on the credit report of September 13, 1963, which all the decisions referred to herein have found was qualified and any action arising out of or because of it was barred by Mississippi's six year statute of limitations. Accordingly the motion for summary judgment is well taken for the same reason given by the Fifth Cir- cuit in its decision reported at 474 F. 2d p. 1261, that is, collateral estoppel. 32a An appropriate order may be submitted within the time provided for by local rules, taxing costs to the plaintiff. /s/ Dan M. Russell, Jr. UNITED STATES DISTRICT JUDGE DATED: /s/ Nov. 26, 1974 Mary Elizabeth Wilson, Plaintiff-Appellant, Vv. Robert W. BICCUM, J. W. Miller, C. A. Grobe, G. O. Pitt- man, J. J. Curtis, T. E. Drone, Charles L. Hammond and Retail Credit Company, Defendants-Appellees. No. 75-1033. United States Court of Appeals, Fifth Circuit. Feb. 3, 1977. Appeal from the United States District Court for the Southern District of Mississippi; Dan M. Russell, Jr., Chief Judge. Before BROWN, Chief Judge, and JONES and GOLDBERG, Circuit Judges. PER CURIAM: With undaunted perseverance reflected by at least - - ee BY mee 8 LO a 33a four decisions in this Court,! Appellant, on a theory of a conspiracy by defendants to conceal their fraud, seeks to bring this case under 42 U.S.C.A. §§ 1983, 1985(3), and 1986. The District Court granted summary judgment which we sustain. There is no adequate state action so § 1983 is unavailable. The § 1985(3) falls be- fore our en banc decision in McLellan v. Mississippi Power & Light Co., 5 Cir., 1976, slip opinion p. ; F.2d _._., rev’g., 526 F.2d 870. As to the asserted pen- dent state claim no error has been demonstrated. AFFIRMED. United States Court of Appeals Fifth Circuit Office of the Clerk March 10, 1977 TO ALL PARTIES LISTED BELOW: No. 75-1033 — Mary Elizabeth Wilson v. Robert W. Bic- cum, ET AL. Dear Counsel: This is to advise that an order has this day been entered denying the petition for rehearing, and no member of the panel nor Judge in regular active ser- vice on the Court having requested that the Court be 1 Wilson v. Retail Credit Co., 5 Cir., 1973, 474 F.2d 1260; Wilson v. Retail Credit Co., 5 Cir., 1972, 457 F.2d 1406; Wilson v. Retail Credit Co., §.D.Miss., No. 3846, Aff'd., 5 Cir. 1971, 438 F.2d 1043. Wilson v. Retail Credit Co., S.D.Miss., No. 3846 was originally filed in the Circuit Court of Harrison County, Mississippi, and was removed to the District Court. 34a polled on rehearing en banc. (Rule 35, Federal Rules of Appellate Procedure; Local Fifth Circuit Rule 12) the petition for rehearing en banc has also been denied. See Rule 41, Federal Rules of Appellate Procedure for issuance and stay of the mandate. Very truly yours, EDWARD W. WADSWORTH, Clerk /s/ SUSAN M. GRAVOIS Deputy Clerk /smg ce: Mr. W. Roberts Wilson, Jr. Mr. Augusta Elliott Wilson Mr. John B. Wilkes Mr. Webb M. Mize --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_1980%3A1. Public record. Not legal advice.