Opposition — Wilson v. Biccum

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1977

No. 76-1746

MARY ELIZABETH WILSON,

Plaintiff-Petitioner,

versus

ROBERT W. BICCUM, J. W. MILLER, C. A. GROBE, G. O.

PITTMAN, J. J. CURTIS, T. E. DRONE, CHARLES L.

HAMMOND AND RETAIL CREDIT COMPANY,

Defendants-Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION

WEBB M. MIZE, of

Mize, Thompson & Blass

310 Gulf National Bank Building

Gulfport, Mississippi 39501

Attorneys for Defendants-

Respondents

SCOFIELDS’ QUALITY PRINTERS. P O BOX 53096 N O LA 70153 504/822.1611

TABLE OF CONTENTS

Page

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QUESTIONS PRESENTED ...................2005. 2

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STATEMENT OF THE CASE ...................... 3

REASONS FOR DENYING THE WRIT ........... 4

ARGUMENT

PLAINTIFF-PETITIONER’S QUESTION! ...... 7

PLAINTIFF-PETITIONER’S QUESTION II ..... 8

PLAINTIFF-PETITIONER’S QUESTION III ... 14

PLAINTIFF-PETITIONER’S QUESTION IV ... 15

PLAINTIFF-PETITIONER’S QUESTION V .... 16

PLAINTIFF-PETITIONER’S QUESTION VI ... 18

PLAINTIFF-PETITIONER’S QUESTION VII .. 18

PLAINTIFF-PETITIONER’S QUESTION VIII .. 19

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TABLE OF AUTHORITIES

Cases

Angel vs. Bullington, 67 S. Ct. 657, 330 U. S.

ee Pe tee

Collins vs. Hardyman, 341 U. S. 651, 71S. Ct.

Se, OS Oe CD GD Seb wecec debe ebeetcerdvern'es

Exhibitors Poster Exchange, Inc. vs.

National Screen Service Corporation, 543

et. ee ae

Garrigan vs. Giese, et al, 420 F. Supp. 68, Af-

firmed, 553 F. 2d 35 (1977) ...............45.

Griffin vs. Breckinridge, 403 U. S. 88, 102-03

EVE VeccseeuUshneneReeseceeebecsssccséecceee

Martin vs. Pacific Northwest Telephone Co.,

441 F. 2d 116, Cert. denied, 92 S. Ct. 89, 404

re be SP I ET bance ncadeceasinaceanes

as MEET KECEEEE ea vaneeuse tone scnenetes es

Prichett vs. Duke Power Company, 49 FRD

116, Affirmed 429 F. 2d 984 .................

Rankin vs. State of Florida, 418 F. 2d 482, Cert.

denied, 90 S. Ct. 1358, 397 U.S. 1039, 25

i EY SNe endausneeccebicnceésenycode ss

Sealand Services, Inc. vs. Gaudet, 94 S. Ct.

806, 414 U. S. 573, 39 L. Ed. 2d 9, Rehearing

denied, 94S. Ct.582,415U. S.986,3L. Ed. 2d

iii

TABLE OF AUTHORITIES (Continued)

Page

Sitton vs. U. S., 413 F. 2d 1386, Cert. denied, 90

S. Ct. 1118, 397 U. S. 988, 25 L. Ed. 395 ........ 7,17

Westberry vs. Gilman Paper Company, 60

PME 665.60 b 660 bee Se SUAS SENS SCE SC eeKetecevesces 5

Wilson vs. Biccum, et al, 546 F. 2d 676 ............ 1

Wilson vs. Retail Credit Company, 438 F. 2d

Dok chovnies stk nesdbenses ved dehesousente sees 3,9

Wilson vs. Retail Credit Company, 457 F. 2d

1406, Affirming the District Court, 325

WP. BI. GD cc ccicctcccccccccvcncscccevcveees 3,10,11

Wilson vs. Retail Credit Company, 474 F. 2d

ED. cccceenaweev.ed.n dense Ubu 60 05: 00.600006060 0%. 3,6,16

STATUTES INVOLVED

— BS ye BNE rT oor rere eT ee ere Tee 2,3

END nb. do dcso5 ceusocbeescesucnenceconvencs 2,3

§ 15-1-35, Mississippi Code of 1972 ................ 3

§ 15-1-49, Mississippi Code of 1972 ................ 3

Rules of Civil Procedure, Rule 56(e) .............. 6

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No. 76-1746

MARY ELIZABETH WILSON,

Plaintiff-Petitioner,

versus

ROBERT W. BICCUM, J. W. MILLER, C. A. GROBE, G.

O. PITTMAN, J. J. CURTIS, T. E. DRONE, CHARLES

L. HAMMOND AND RETAIL CREDIT COMPANY,

Defendants-Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF IN OPPOSITION

OPINION BELOW

The Opinion of the United States Court of Appeals

for the Fifth Circuit is reported as Mary Elizabeth

Wilson, Plaintiff-Appellant, vs. Robert W. Biccum, J.

W. Miller, C A. Grobe, G. O. Pittman, J. J. Curtis, T. E.

Drone, Charles L. Hammond and Retail Credit Com-

pany, Defendants-Appellees, 546 F. 2d 676, which af-

firmed the Opinion of the United States District Court

for the Southern District of Mississippi. Both Opin-

ions are in the Appendix to the Petition for Writ of Cer-

tiorari.

On the 20th day of June, 1977, the United States Court

of Appeals for the Fifth Circuit overruled the Motion

of the Plaintiff-Appellant for recall and stay of the

issuance of the Mandate and there is a copy of that

Order in the Appendix hereto.

JURISDICTION

The Petitioner seeks to invoke the jurisdiction of

this Court by way of Petition for Writ of Certiorari

through the authority of 28 USC 1254 (1). Petitioner has

posed eight questions for review, none of which, in our

opinion, would justify a review by way of Certiorari

(Rule 19, 1).

QUESTIONS PRESENTED

The questions presented by the Pilaintiff-Petitioner

grow out of 42 USC 1983 and 42 USC 1986, although we

consider all of the questions set forth as being

presented in the Petition for a Writ of Certiorari to be

false and misleading and that, rather, the questions

should be:

a) May a Petitioner avoid being collaterally es-

topped by recasting adjudicated issues and facts in the

form of an action under the Civil Rights Statutes?

b) Is this suit barred by Collateral Estoppel, Stare

Decisis, Res Adjudicata and Statute of Limitations

and Laches?

3

STATUTES INVOLVED

i) 42 USC 1983

2) 42 USC 1986

3) Section 15-1-35, Mississippi Code of 1972

4) Section 15-1-49, Mississippi Code of 1972

STATEMENT OF THE CASE

The present case is the fourth appearance of facts

and substance constituting the alleged cause of action

filed by the Plaintiff-Petitioner, two of the previous

suits being by the Plaintiff-Petitioner against the

Defendant-Respondent, Retail Credit Company, now

Equifax Inc. The individual Defendants were

employees of Retail Credit Company and in privity

with Retail Credit Company as to matters, substance

and facts in this cause. The former cases referred to

are: Mary Wilson vs. Retail Credit Company, 438 F. 2d

1043, W. Roberts Wilson vs. Retail Credit Company,

457 F.2d i406, affirming the District Court, 325

F. Supp. 460, and Mary Elizabeth Wilson vs. Retail

Credit Company, 474 F. 2d 1260. The facts in this case

have been heard by each of the Federal District Judges

for the Southern District of Mississippi, and by Judges

Brown, Goldberg, Gewin, Jones, Ainsworth, Simpson,

Bell and Dyer, of the Unite’ States Court of Appeals

for the Fifth Circuit. The best statement of the case is

contained in the Opinion of the District Court, which

appears in the Apperdix to the Petition for Writ of Cer-

tiorari at pages 25a to 32a.

This present suit, as well as the previous three suits,

resulted in Summary Judgments on behalf of the

4

Defendant. In the Record in the instant suit is the com-

plete transcript of all proceedings in the first three

suits, showing that the facts essential to the Judgment

were actually litigated and determined by valid Final

Judgments in the previous suits, which previous suits

were not on the theory of a violation of Civil Rights.

The Complaint in the present suit attempts to charge

violation of Civil Rights by virtue of a conspiracy

between the employees of Retail Credit Company and

Retail Credit Company. The allegations of overt ac-

tions consist of memoranda, letters and office com-

munications, which were before the Court in all of the

former suits.

In the present suit the Motion for Summary Judg-

ment was accompanied by Affidavits of the individual]

Defendants, all of which showed no conspiracy. There

were no counter-affidavits filed on this issue.

Other portions of the Facts will be more fully

developed in the Argument.

REASONS FOR DENYING THE WRIT

No questions of substance are presented by

Plaintiff-Petitioner that show denial of rights, depriv-

ing Petitioner of her day in Court. There is shown no

special or important reason for granting the Writ, and

the United States Court of Appeals for the Fifth Circuit

has not decided an important state or territorial ques-

tion in this cause in conflict with another Court of

Appeals and has not decided an important state or

territorial question in conflict with applicable state or

territorial law, and has not decided a question not

already settled by this Court, and has not decided a

federal question in conflict with applicable decisions

of this Court, and has not departed from accepted and

usual courses of Judicial proceedings, to call for

supervision by this Court.

We do not find in the Petition for Writ of Certiorari

that the Plaintiff-Petitioner claims any constitutional

right as being violated unless same is included under

the Civil Rights Statutes we referred to.

ARGUMENT

The Plaintiff-Petitioner commences argument by

citing Griffin vs. Breckinridge, 403 U.S. 88, 102-03

(1971), and Westberry vs. Gilman Paper Company, 60

FRD 447, and McLellan vs. Mississippi Power Com-

pany, 526 F. 2d 870, which cases give no help whatever

to the Plaintiff-Petitioner, as not all private con-

spiracies to interfere with the rights of another fall

within the Civil Rights Statute.

The instant case was decided on a Motion for Sum-

mary Judgment, the Complaint in the case attempt-

ing to allege a conspiracy for the violation of the civil

rights of the Plaintiff-Petitioner, and there were

asserted certain alleged overt acts, which alleged

overt acts were in the record of the first of the Wilson

suits, as well as in the record of all succeeding ones.

The claimed conspiracy was alleged to have com-

menced by the writing of a Retail Credit Character and

Financial Report on September 13, 1963, and in that

=

report it was stated, “Others are more severe in their

criticism, regarding her as neurotic or psychotic.”

The alleged overt acts, alleged in the complaint to con-

tinue through 1964, consists of letters and office

memoranda of employees of Retail Credit Company,

but it is alleged that the fruits of the conspiracy

culminated on August 16, 1972, when the Court ordered

a Summary Judgment based on the Statute of

Limitations. This is the Summary Judgment that was

appealed and is reported at 474 F. 2d 1260. Summary

Judgments entered in the first three Wilson cases were

all appealed to the United States Court of Appeals for

the Fifth Circuit, and, as aforesaid, all were affirmed.

No application was made in any for a Writ of Cer-

tiorari to the United States Supreme Court, and “he

Judgments in the first three Wilson cases are certa nly

final.

Retail Credit Company, the Respondent here, and

the Appellee in all of the Wilson cases, filed affidavits

and proof with its Motions for Summary Judgment, in

each case, and such proof consisted of depositions, af-

fidavits and admissions. In this cause, the Plaintiff-

Petitioner did not file any counter-affidavits, or af-

fidavits, todeny that there was not aconspiracy, under

Rule 56(e), Rules of Civil Procedure. Nothing was filed

for consideration by the Court to show that there wasa

genuine issue for trial, as required by such Rule.

There is nothing in the record to show that the in-

dividual Defendants were not in privity with Retail

Credit Company; in fact, all of the proof is to the con.

trary.

Certainly, the Plaintiff-Petitioner, in the arguments

set forth, relies wholly upon allegations of the Com-

7

plaint, which allegations are not supported by proof

(and no proof was offered), and on wishful thinking.

There was no genuine issue of fact, and the proof of the

Defendants-Respondents stands uncontradicted. Sit-

ton vs. U. S., 413 F. 2d 1386, Cert. denied, 90S. Ct. 1118,

397 U. S. 988, 25 L. Ed. 395.

Throughout the Petition for the Writ, more than a

dozen times, it is stated that the Plaintiff-Petitioner

was denied her day in Court, even though this is her

fourth case based on the same facts; and, Plaintiff-

Petitioner has stated that her cases should not have

been dismissed at the pleading stage. We believe that

Plaintiff-Petitioner means she should have had a Jury

trial, and that her conception is that a hearing on a

Summary Judgment is not a hearing on the merits.

This theory has been argued on a previous appeal.

PLAINTIFF-PETITIONER’S QUESTION I

Petitioner's Question I is really not a question. Cer-

tainly, an individual citizen has the right to resort to

the Courts in a Civil suit and the Plaintiff-Petitioner

has resorted to the Court, and has been very persistent

in her pursuit of damages against the Retail Credit

Company. We agree that a citizen has the right of

access to the Courts, and that that is a fundamental

right. We further agree that a citizen has the right to

litigate and sue, and is entitled to equal protection un-

der the law, with full access to the Court for the

prevention and redress of wrong. We assert, however,

that the Plaintiff-Petitioner has had full access to the

Courts, as is shown amply by the former Wilson cases,

and the record in this case. Certainly, Question I gives

no right for a review by the Court.

8

PLAINTIFF-PETITIONER’S QUESTION II

Plaintiff-Petitioner’s Question II] is certainly falsely

posed but gives no right for a review by this Court. The

allegations of the Complaint and the proof do not sus-

tain some of the incorrect assertions made by

Plaintiff-Petitioner in argument. No conspiracy was

proved, nor was proof offered, nor, for that matter, do

we think any conspiracy was properly alleged; and,

certainly, this case is not properly what we consider a

Civil Rights case. Nothing is stated in the Complaint

except mere conclusions of the Pleader. If the present

suit is properly a Civil Rights suit, then any tort ac-

tion could be brought under the Civil Rights statutes

and we do not believe that it is the intent of the Act that

every tort or injury might be brought under the Civil

Rights statute. There is no racial animus and no state

action. The Plaintiff-Petitioner does not represent any

Ciass. Charging in the Complaint is not sufficient

without proof. The Civil Rights statutes do not attempt

to reach a conspiracy to deprive one of civil rights un-

less deprived of equality, equal protection of the laws,

or equal protection and immunity under the law.

Collins vs. Hardyman, 341 U. S. 651, 71 S. Ct. 937, 95

L. Ed. 1253.

Plaintiff-Petitioner claims her rights were violated

because of non access to the Courts, and that she was

deprived of her constitutional rights under color of

state law. The fact that the decisions and statutes of the

State of Mississippi prevented recovery by Mrs.

Wilson because of Qualified Privilege and Limitation

of Action is not sufficient involvement by the State to

be an action under color of State law within the mean-

ing of the Civil Rights Act. Martin vs. Pacific

Northwest Telephone Co., 441 F. 2d 116, Cert. denied,

92 S. Ct. 89, 404 U. S. 873, 30 L. Ed. 117.

Plaintiff-Petitioner alleges that she was “lied to.”

This is stated at least twice; but, there is no proof what-

ever in the record to sustain that allegation. Mis-

takenly, the Plaintiff-Petitioner argues that her

former suits were not heard on the merits, meaning

that a suit dismissed on Summary Judgment is not

dismissal on the merits.

It is also stated by the Plaintiff-Petitioner that it was

impossible for her to learn the nature of the libelous

credit reports, and this was argued in Mrs. Wilson's

second suit.

On page 21 of the Petition, the Plaintiff-Petitioner

states that the two earlier suits — one for libel, and the

other for products liability, “were dismissed because

the statute of limitations problem and the technicality

of failure to allege malice.”

This statement in the Petition is erroneous, as we

can find nothing in the Opinions of the Court in the

former cases to state that a dismissal occurred

because of malice. The Opinion, however, does state:'

“Nothing in the Report indicates any malice,

or that anything more was done than simply

report in good faith what they found from in-

formants to be the facts about which such

questionnaire related .. .”

1 438 F. 2d 1043

10

and

“There is nothing in the record before the

Court to show the existence of any fraudon the

part of the Defendant...”

and

“Nothing is said in any response to that mo-

tion to deny good faith on the part of the defen-

dant in making such report.”

In the Opinion in the second Wilson case,? we find:

“Likewise, the inter-office memoranda do not

reflect any bad faith or malice on the part of

the employees of the defendant company, but

merely demonstrate their understandable

concern that the contents of a confidential

report had been revealed to the person who

was the subject thereof and their attempts to

verify the information contained therein.”

Another misleading statement is made by the

Plaintiff-Petitioner: “Although the instant case

demonstrates clear and convincing evidence suf-

ficient to establish the conspiracy without circum-

stantial evidence .. .’’ No evidence was presented by

the Plaintiff-Petitioner, and the statement just above

quoted is entirely erroneous.

We believe it must be the position of the Plaintiff-

Petitioner that filing affidavits in Court and filing a

2 W. R. Wilson vs. Retail Credit Company, 325 F.Supp. 460, af-

firmed at 457 F. 2d 1406.

11

Motion for Summary Judgment, denies the Plaintiff-

Petitioner her day in Court. She states that affidavits

that were filed were false and misleading, although

there is no proof of this, and nothing was filed in the

District Court to support this statement. The Find-

ings of the Court below in these cases clearly indicate

the falsity of these unfair and unwarranted statements

in Plaintiff-Petitioner’s Petition for the Writ.

It is further argued under Question II that:

“. .. the defendants’ reliance on the judicially

protected privilege and the custom and usage

of the times, made it virtually impossible for

the plaintiff to learn of the nature of the

libelous credit reports, and this appears to be

sufficient to state a cause of action uner [sic]

42 USC § 1983, because there was a dis-

criminatory action by the defendants against

the class of persons upon whom libelous

credit reports were made.”

That statement is most interesting, inasmuch as it

has been urged in all of the previous three Wilson

cases, and, from the Opinion in 325 F. Supp. 460, page

465, we find:

“The deposition of the plaintiff's wife and the

affidavits of various Commercial Credit Com-

pany employees, filed in Civil Action No. 3846,

reveal that Mrs. Wilson made numerous in-

quiries concerning this 1963 report, and in do-

ing so, informed these employees of her

knowledge of the existence of the report. She

12

also claimed to have seen the report and have

knowledge of the contents thereof. Although

Mrs. Wilson, in her deposition, claims to have

only been ‘fishing’ or ‘bluffing’ in these asser-

tions, it would seem to be more than coinciden-

tal that she should use the word ‘neurotic’ in

referring to the contents of her report. See

Atwell v. Retail Credit Company, 431 F. 2d

1008 (C. A. 4, 1970). In order for a particular

misrepresentation to constitute fraud which

would toll the running of the Statute of Limita-

tions, it must be made under such circum-

stances, and be of such nature that a rea-

sonably prudent person would act thereon.

New York Life Ins. Co. v Gill, 182 Miss. 815, 182

So. 109 (1938).”’

We further cannot understand the statement on page

27 of the Petition, where it is stated,

“... itis obvious as well as law of the case that

Mrs. Wilson was not able to sue the defendant

Retail Credit Company after the defendants

undertook all of the activities, mentioned

above and below, which are the basis of this

present suit.”

Our answer to this is that Mrs. Wilson has filed three

separate suits on the same facts and has had the oppor-

tunity of suing since the year 1963, when she first

learned of the contents of the report.

Furthermore, the overt acts set forth as part of the

claimed conspiracy to violate the Civil Rights of the

13

Plaintiff-Petitioner, delineated in the Amended Com-

plaint in this cause, are all set out in the Report of the

Hearings before the Subcommittee on Antitrust and

Monopoly of the Committee on the Judiciary in the

United States Senate, Ninetieth Congress, Second Ses-

sion, pursuant to Senate Resolution No. 233, Credit

Bureaus and Reporting, held on December 10 and 11,

1968.

While the record shows, and the Opinion of the

Court, as aforesaid shows, that Mrs. Wilson was fully

cognizant of the nature of the report prior to the Senate

Hearings, these so-called overt acts were made public

during the Hearings and are published in the record.

Furthermore, in a deposition in Mrs. Wilson's first

case (Supplemental Record 25, pages 16-17 thereot)

the Plaintiff-Petitioner agreed that her file might be

opened to the public.

The Plaintiff-Petitioner argues that the Statute of

Limitations does not run until commission of the last

overt act done in the pursuance of the conspiracy. No

conspiracy was shown inthis case. There is nota scin-

tilla of evidence of any conspiracy. No evidence by af-

fidavit or otherwise, as to such, wasintr: ‘uced or filed

on the Motion for Summary Judgment, which Motion

the Court sustained. The proof was to the contrary,

that there was no conspiracy among the Defendants.

The last overt act alleged was that of the District

Court granting Summary Judgment in Mrs. Wilson's

second suit. This is a lefthanded allegation that the

Court was a part of the conspiracy because it granted

Summary Judgment.

_

—

=

14

The allegation that the Plaintiff-Petitioner is a

member of a class is meaningless, as the Statute of

Limitations of Mississippi, and the laws of privilege,

are common to all citizens.

The claim of the Plaintiff-Petitioner to being a

member of a class, which we do not consider

applicable in this case, cites affidavit and deposition

of Len O. Holloway, who worked for Retail Credit

Company for a short while in 1968 and 1969, some five

or six years after the so-called libelous report was

made,’ and we assume that the Plaintiff-Petitioner felt

that because a bad report was made on her she was in

that percentage and became a member of a Class.

However, Mrs. Wilson's report was made long prior to

1968, the time spoken of by witness Holloway. The

lower Court in this cause, in its Opinion, found that

both affidavits were irrelevant and immaterial to the

action.

PLAINTIFF-PETITIONER’S QUESTION III

Plaintiff-Petitioner’s Question III is inconsequen-

tial. The proof does not show that the Defendants-

Respondents were conspirators. The proof does not

show that the individual Defendants-Respondents

were acting in an individual, separate and distinct

capacity, and for their benefit separately. The proof in

the record concerning the alleged conspiracy is that

offered by the individual Defendants-Respondents.

3 Affidavit of Boaz was likewise filed after submission of Motion

for Summary Judgment. Affidavit of Boaz stated that there was a

policy for some percentage of reports to be rejected, although this

affidavit was not relevant. and was filed too late. Boaz was not ac-

quainted with Plaintiff-Petitioner and worked only out of the Rich-

mond, Virginia, office. He stated Retail Credit Company required

certain rejections.

15

This proof conclusively shows that all that was done

by the individuals was in their capacity asemployees.

agents, or as attorneys for the Defendant-Respondent

Retail Credit Company. The allegations of the Com-

plaint cannot be considered as evidence and these

allegations cannot contravert the proof on Motion for

Summary Judgment.

PLAINTIFF-PETITIONER’S QUESTION IV

Plaintiff-Petitioner’s Question IV is also a false

issue in this suit. The first Paragraph of the Argument

of Plaintiff-Petitioner under Question IV disposes of

the question as being frivolous. It shows that no proof

of damage has been made and that the damage oc-

curred at one time or the other when one of the Motions

for Summary Judgment was sustained. This is tried to

be tied in with the alleged conspiracy, making the

Court a part of the conspiracy by sustaining Motions

for Summary Judgment. No injury to person or prop-

erty has been proven in the instant case. Contrary to

the statement in Plaintiff-Petitioner’s Argument:

“Plaintiff filed her first suit and was denied a trial on

the merits,’’ the Plaintiff-Petitioner has had

successive trials. The District Court, in its Opinion in

this cause, states:

“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 un-

der 42 U.S.C. 1983 should therefore be dis-

missed with prejudice.”

16

PLAINTIFF-PETITIONER’S QUESTION V

Again, Question V is a false issue. The posed ques-

tion assumes that there was a conspiracy. The proof

shows that there was none. The proof shows that no in-

dividual Defendant-Respondent conspired for his sep-

arate benefit. Unless collateral estoppei is the law of

this case, collateral estoppel is meaningless. The

overt acts, alleged as being part of the conspiracy en-

gaged in by the individual Defendants-Respondents,

were a part of the Senate Hearings, as foresaid. Those

papers, documents and memoranda before the Senate

Committee, and in the record, in each of the Wilson

cases, contained the same question of fact and, as was

said in Mary Elizabeth Wilson vs. Retail Credit Com-

pany, 474 F. 2d 1260:

“In short, where a question of fact essential to

a judgment is actually litigated and deter-

mined by a valid and final judgment, that

determination is conclusive between the par-

ties in a subsequent suit on a different cause of

action.”

The Opinion of the Fifth Circuit Court of Appeals in

this cause does not mention collateral estoppel, but af-

firms the District Court, which stated:

“Accordingly the motion for summary judg-

ment is well taken for the same reason given

by the Fifth Circuit in its decision reported at

474 F. 2d, p. 1261, thatis, collateral estoppel.’’4

4 The Lower Court's Opinion, however, also held that the Statute

of Limitations applied.

17

There is nothing in the proof to show that the in-

dividual Defendants-Respondents were not in privity

with the corporation, Defendant-Respondent Retail

Credit Company. There is nothing to indicate that the

individual Defendants-Respondents were acting per-

sonally and for their own benefit.

“... A final valid determination on the merits

is conclusive on the parties and those in privi-

ty with them as to the matters adjudged, or

which should have been litigated in another

action or proceeding involving the same

cause of action.’ ’’ (emphasis ours) Sitton vs.

U.S., supra.

Many misleading statements are made in the Peti-

tion, and certain cases are cited in support of the state-

ment that collateral estoppel cannot be applied in

Civil Rights actions in the Federal Court. The cases do

not support that statement.

In the case of Kaufman vs. Moss, 420 F. 2d 1270, we

find that

“Where a Motion to Dismiss is made on the

basis of collateral estoppel, it is usually

necessary for the Court to examine the record

of the prior trial, unless it appears on the face

of the Complaint that it is barred by issues

decided in the prior adjudication.”

The entire record of all of the three former Wilson

cases was before the Court on the Motion to Dismiss

and the Motion for Summary Judgment.

18

Where a Court of competent jurisdiction has entered

final Judgment on the merits, the parties and their

privity are bound not only as to matters offered and re-

ceived to sustain or defeat claim or demand, but as to

any other admissible matter which might have been

offered. Sealand Services, Inc. vs. Gaudet, 94S. Ct. 806,

414 U. S. 573, 39 L. Ed. 2d 9, Rehearing denied, 94S. Ct.

582, 415 U. S. 986, 39 L. Ed. 2d 883. Rankin vs. State of

Florida, 418 F. 2d 482, Cert. denied, 90 S. Ct. 1358, 397

U.S. 1039, 25 L. Ed. 2d 650.

The case of Garrigan vs. Giese, et al, 420 F. Supp. 68,

Affirmed, 553 F. 2d 35 (1977) concerned an action that

was brought three times, claiming a conspiracy for

the reduction of Civil Service grade by the United

States and certain Army employees who participated

in the grade reduction. That recent case was similar to

the instant case in that the facts were the same and

different causes of action were alleged in the separate

suits, as well as different causes of action against the

privies, and the Court held that res adjudicata and es-

toppel applied.

PLAINTIFF-PETITIONER’S QUESTION VI

The Plaintiff-Petitioner does not separately argue

his Question VI, and we will follow the same course.

PLAINTIFF-PETITIONER’S QUESTION VII

Plaintiff-Petitioner’s Question VII is likewise false.

There is no proof that damage did not occur until

February 20, 1973, and there is no proof of any damage

occurring at all. All of the overt acts are contained in

the Senate Report, with the exception of the allegation

19

that the Defendant-Respondent obtained Summary

Judgments and Dismissals of the former suits.

We believe that the law is that a Defendant is entitled

to make any valid defense that it might have. The

original suit was a tort suit, based on libel; then we had

products liabili 7, invasion of privacy, deprivation of

constitutional rights, etc. (it having been argued in

Mrs. Wilson's second suit that she was denied her

rights under the Constitution). She argued and con-

tended that the application of the Statute of

Limitations deprived her of due process of law on her

alleged claim. She further contended she had been de-

nied the equal protection of the law. This issue was

heard, argued and determined in a previous appeal.

We do not see how this Court can determine any dam-

age as no proof of same has been offered.

PLAINTIFF-PETITIONER’S QUESTION VIII

No issue is raised by Plaintiff-Petitioner’s Question

VIII. The collateral estoppel does apply to all claims

upon which all of the Wilson suits have been heard and

determined. There is no pendent claim.

CONCLUSION

Even though the Plaintiff-Petitioner names this ac-

tion as a Civil Rights suit, or a conspiracy to violate

the Civil Rights of the Plaintiff-Petitioner, this does

not make it so. Even though, in the Petition, she talks

of a conspiracy, there is no cause of action stated, only

conclusions. Retail Credit Company is acorporation.

All of the many individuals who have been served

with process are agents or officers and occupy some

managerial or professional position with Retail

Credit Company, with the exception of Charles L.

Hammond who, at the time complained of, occupied a

position with Retail Credit Company as an in-

vestigator and wrote the report that has been the sub-

ject of all of the litigation. His affidavit showed that he

never conspired tortiously or otherwise with any of

the Defendants-Respondents in this cause against the

Plaintiff-Petitioner, and that everything he did was in

relation to his employment.

We pointed out, under Questions presented, that the

Plaintiff-Petitioner was collaterally estopped from

filing this suit as she recast adjudicated issues and

facts in the attempted action under the Civil Rights

Statutes, and that the suit was barred by Collateral Es-

toppel, Stare Decisis, Res Adjudicata and Statute of

Limitations and Laches.

Actually, in the case now before the Court the

Plaintiff-Petitioner attempts to substitute this suit for

the right of appeal of previous cases growing out of

the same facts. No applications for Certiorari to this

Court were made in any of the earlier suits. See Angel

vs. Bullington, 67 S. Ct. 657, 330 U. S. 183,91 L. Ed. 832.

Again, in this cause, the Plaintiff-Petitioner states

that a Summary Judgment cannot have a collateral es-

toppel effect and that by attempting to bring this suit

on the the ».y of denial of Civil Rights that there is no

collateral estoppel.

The Fifth Circuit recently, in the case of Exhibitors

Poster Exchange, Inc. vs. National Screen Service

Corporation, 543 F. 2d 1106, held that repeated actions

21

such as the Plaintiff-Petitioner has engaged in, in this

cause, is a frivolous appeal and sanctions were allow-

ed. In that case it was stated:

“Once again the appellant, Exhibitors Poster

Exchange, Inc., urges that a summary judg-

ment cannot have collateral estoppel effect.

The same argument was urged to us and

decided against this same appellant in Ex-

hibitors Poster Exchange, Inc. vs. National

Screen Service Corporation, et al., 5 Cir., 1975,

517 F. 2d 110, cert. denied, 423 U.S. 1054, 96

S. Ct. 784, 46 L. Ed. <d 643 (1976).”’

It has been our purpose in this Response to the Peti-

tion for Writ of Certiorari to emphasize that proof was

not offered to support the allegations of the First

Amended Complaint, and the general rule of law is

that litigation must end, and that the Court reject the

right of continuous litigation of issues determined in

earlier actions, especially where the causes were

heard upon affidavits unrefuted and which the other

party had ample time to refute. Prichett vs. Duke

Power Company, 49 FRD 116, affirmed, 429 F. 2d 984.

The Wilson cases, all cited above, have been

presented on the theories of libel, products liability,

invasion of right of privacy, denial of property rights,

violation of the Fifth and Fourteenth Amendments,

misrepresentation and deceit, interference with

property and contract rights and finally, in this cause,

conspiracy to violate the Civil Rights Statutes.

22

It is said in a footnote in the third Wilson case:

Regardless of the disingenuous

characterization, no new facts are alleged in

the present litigation which were not already

decided by the previous suit.”

We, therefore, respectfully submit that the Petition

for the Writ should be denied, as there is no important

federal question presented. The decision is not in con-

flict with other Circuits. The case does not present any

new questions of law, and, litigation must come to an

end, the Plaintiff-Petitioner having known the facts

since the latter part of 1963.

Respectfully submitted.

WEBB M. MIZE, of

Mize, Thompson & Blass

Attorneys at Law

310 Gulf National Bank Building

Gulfport, Mississippi 39501

Attorneys for Defendants-

Respondents

I, Webb M. Mize, of the firm of Mize, Thompson &

Blass, attorneys of record for Defendants-

Respondents, do hereby certify that I have this day

mailed, postage prepaid, a copy of the foregoing Brief

for Respondents in Opposition to Wm. Roberts Wilson,

Jr., attorney for Plaintiff-Petitioner, P. O. Box 1507,

Pascagoula, Mississippi 39567.

23

CERTIFICATE

THIS, the ____ day of July, 1977.

Webb M. Mize

la

APPENDIX

In the United States Court of Appeals

For the Fifth Circuit

No. 75-1033

MARY ELIZABETH WILSON,

Plaintiff-Appellant,

versus

ROBERT W. BICCUM, J. W. MILLER,

C. A. GROBE, G. O. PITTMAN, ET AL.,

Defendants-Appelliees.

Appeal from the United States District Court

for the Southern District of Mississippi

ORDER:

The motion of appellant for recall and stay of the

issuance of the mandate pending petition for writ

of certiorari is DENIED. See Fifth Circuit Local

Rule 15, as amended January 11, 1972.

/s/ JOHN R. BROWN

UNITED S”ATES

CHIEF JUDGE

[Filed: J':ae 20, 1977]