Opposition — Hunt v. Hunt

Office Supreme Court, U.S.

FILED

No. 80-2126 JUL 20 1961

TEVAS,

CLERK

IN THE

Supreme Court of the United States

OcTOBER TERM, 1980

Huau S. Hunt, Petitioner,

Vv.

Ray Lee Hunt, Executor Or Tue Estate Or

H. L. Hunt, Respondent.

On Petition For A Writ Of Certiorari To The United States Court

Of Appeals For The Fifth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

Sipney E. Coox

Counsel of Record

Cook, YANCEY, Kinc & GALLOway

600 Commercial National Bank Bidg.

Shreveport, Louisiana 71101

(318) 221-6277

JACKSON, WALKER, WINSTEAD,

CANTELL & MILLER

4300 First National Bank Bldg.

Dallas, Texas 75202

ONEBANE, DONOHOE, BERNARD, TORIAN,

Diaz, MCNAMARA & ABELL

Suite 700, First National Bank Bldg.

666 Jefferson Street

Lafayette, Louisiana 70501

Attorneys For Respondent, Ray Lee

Hunt, Executor Of The Estate Of

H. L. Hunt

PRESS OF BYRON S. ADAMS PRINTING, INC., WASHINGTON, D.C.

QUESTIONS PRESENTED FOR REVIEW

This action arises from the resistance of petitioner, Hugh

S. Hunt, to proceedings brought by Ray Lee Hunt, Executor

of the Estate of H.L. Hunt, to enforce a compromise and set-

tlement agreement entered into in the context of pending

federal litigation. Enforcement of the settlement was ordered

by the District Court after a plenary hearing; the order was

affirmed by the U. S. Court of Appeals for the Fifth Circuit.

The petition for writ of certiorari presents the following ques-

tions:

Whether this Court has jurisdiction to issue a writ of

certiorari in this case when the pro se petition was

filed 154 days after entry of judgment by the U. S.

Court of Appeals for the Fifth Circuit despite the

time limitation imposed by 28 U.S.C. §2101(c), re-

quiring that an application for writ of certiorari be

filed no later than 150 days (including all extensions)

after entry of the judgment of which review is

sought?

In the alternative, should the Court find jurisdiction,

whether the Court of Appeals, in determining the ap-

plicable state law by which to assess certain of Hugh

S. Hunt’s objections to the settlement, acted proper-

ly in applying the choice of law rules of the District

Court’s forum state?

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED FOR REVIEW ............0000005 i

SAME MIP AMTUNE GC Cea Uicesvacewhoarebaveevevers iii

A We FTIR i 6 a. o.8 kode hs tnared vaeeeceesyes.e iv

PUES Cho vais bens sche eh Sleeaaseeeabevoca veces ]

ESTED a heck eek Ge bet. bob US unuaod.oke ee se 2

UR Ee BION CAME ei ckicdeccuccdsdcubeaceens 2

REASONS For DENYING THE WRIT............0..0000 00: 9

1. The Court Is Without Jurisdiction To Entertain

Hugh’s Petition For Writ Of Certiorari. ....... 9

2. The Court Of Appeals Fully Considered And

Correctly Decided All Issues Presented For

PROVIEW TOY POUNOMNET «6. onic bin'n'c beindaveccecicce 12

(a) Louisiana Explicitly Has Adopted The

Choice Of Law Rules Of The Restatement,

Second, Conflicts Of Laws (1969). ........ 13

(b) The Decision Of The Fifth Circuit Com-

ig Completely With La. Civ. Code art. e

AGING AR A eat ape” 5 ea 1

3. The Balance Of Hugh’s Complaints Involve The

Factual Findings Of The Lower Courts Which

Are Not Properly Subject To Review On Writ

See RG SEER GG Rae ek Ciba v dee vc \dbaess 22

RU NS he ears Ne ea ole eas bape amroca 23

I Seats Be ital te Ud te les ens as ou wale’ la

iv

TABLE OF AUTHORITIES

CASES: PAGE

Angel v. Bullington, 330 U.S. 183 (1947) ........0.006: 17

Southern Insurance Co. v. Consumer Insurance Agency,

Inc., 442 F. Supp. 30 (E.D. La. 1977) ............. 17

Ardoyno v. Kyzar, 426 F. Supp. 78 (E.D. La. 1976)..... 17

Berenyi v. Immigration Director, 385 U.S. 630 (1967) ... 23

Blanchard y. Blanchard, 180 So. 2d 564 (La. App. 3d

CO RII oa Vida od i.c bab h Rhea gic haw eNO ede epee 13

Brinkley & West, Inc. v. Foremost Ins, Co., 499 F.2d

SEE Cee CH. IDI ds seb rrccen hue emeee dae scans 15

Commercial Union Ins, Co. v. The Upjohn Co., 409 F.

Sani ASS CW DD. Las: (FTO). sade since daidweretcdés's 17

Challoner vy. Day and Zimmerman, Inc., 512 F.2d 77

CFO: SOT OD a i aidan vides Rocencpeeieat vun-ewbeas 18

Davis v. Humble Oil & Refining Co., 283 So. 2d 783

CLM CO Cale ENTOE Cis co di sonkavaneeenesedne 16

Day and Zimmerman, Inc. vy. Challoner, 423 U.S.

SEISEUE Vic UD ave d's dav xGells.6 0 oc WON Ree Cee eeteles 17, 18

DeMary v. Fontenot, 161 So. 2d 82 (La. App. 3d Cir.

SOT oS wics.0'c'a 66 bakcb'k sn nahn GOK CR aia s ae 14, 21

Erie R. R. Co. v. Tomplins, 304 U.S. 64 (1938) ........ 13

Graver Mfg. Co. v. Linde Co., 366 U.S. 271 (1949)..... 23

Jagers v. Royal Indemnity Co., 276 So. 2d 309 (La.

WOES A Kadai widede GkRGadc CERMRes aReeeOakenes 14

Johnson v. St. Paul Mercury Ins. Co., 236 So. 2d 216

CR COIR aiid ice VOerctes ewe aceon Ree ahah tats 14

Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487

GED yk bci'e 5 oe bk bic bbe ern Aah ia bos Ha Deane 13

Lee v. Hunt, 410 F. Supp. 329 (M.D. La. 1976); 415 S.

Supp. 245 (M.D. La. 1976); 483 F. Supp. 826 W.D.

Lib, POOP 8h sos oe dgutiesnb oesave cm einniakeakodos 4, 20

Lester v. Aetna Life Insurance Co., 433 F.2d 884 (5th

SGCh SOUR: Sorc ca wae e Ae ces Rap cea diets seid eka 17

Table of Authorities Continued

CASES: PAGE

McConwell v. Corgey, 262 S.W. 2d 944 (Tex. 1953)..... 21

Massachusetts Casualty Ins. Co. v. Forman, 469 F.2d

ye Rh Ro AS yn ree PEL sx eee eee ye 24

Matton Steamboat Co. v. Murphy, 319 U.S. 412

CE SULEU CECE Ye cba cbaidetlebsacrv adeube sees 10, 11

Pearson v. Ecological Science Corp., 522 F.2d 171 (Sth

Cir. 1975); cert. den. sub nom. Skydell v. Ecological

Science Corp., 425 U.S. 912 (1976). .........05006- 24

Schacht v. U.S., 398 U.S. 58 (1970) ........-00 ee eees 10, 16

Sutton v. Langley, 320 So. 2d 321 (La. App. 2d Cir.

1976), writ den. 333 So. 2d 242 (1976)........... 16, 22

Taglianetti v. U.S., 394 U.S. 316 (1969) ..............-. 10

Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399

(Se RRS Sy A ts Hepa, MeL 10

Trevino v. Turcotte, 564 S.W. 2d 682 (Tex. 1978)....... 21

Universal C.1.T. Credit Corp. v. Hulett, 151 So. 2d 705

TL, POs Oe Cs BOOS) 00a oe bP eves eaxecesvs 13, 21

Wayne v. Olinkraft, Inc., 293 So. 2d 896 (La. App. 2d

Cir. 1974), writ den. 294 Su. 2d 827 (1974).........

Wickham v. Prudential Ins. Co. of America, 366 So. 2d

DIN Cea PE TOG: 1ST B ie ik Fa ae Edas avo vee 16, 22

STATUTES:

TRG vin sn kw keds 66 6G e EUR eee cvdére 10

RR EC 55 0s bbb pk? ebb cweas tebe cones 10

ee a Ns is ek db o Raknd gears 6 babbke ec nane ss 10

2B UBS. SEIOM. i56 F88. RN eee bth 2, 9, 10, 11

RIE EE vic ocak be becr ei sboceSWanbecccrvess 10

PM A iy ska bs COMME Oe b'e-o 006 p40 0 vale'viop os 10, 11

ES ee Gis OO ip xdecdacwece coscsewstiwees 2, 19, 21

vi

Table of Authorities Continued

TEXTs:

Restatement, Second, Conflicts of Laws (1969)

IN THE

Supreme Court of the United States

OcTOBER TERM, 1980

No. 80-2126

Hua S. Hunt, Petitioner,

Vv.

Ray LEE Hunt, Executor OF THE ESTATE OF

H. L. Hunt, Respondent.

On Petition For A Writ Of Certiorari To The United States Court

Of Appeals For The Fifth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

Respondent, Ray Lee Hunt, Executor of the Estate of H.

L. Hunt, respectfully requests that this Court deny the peti-

tion for writ of certiorari, seeking review of the Fifth Circuit’s

opinion in this case. That opinion is reported at 631 F.2d

1171. (App. C, infra)

JURISDICTION

Petitioner fails to state ‘he statutory provision conferring

jurisdiction on the Supreme Court of the United States to

review the judgment in question by writ of certiorari as re-

quired by Supreme Court Rule 21.1(e)(iv). In an action such

as this jurisdiction ordinarily would be conferred by 28

U.S.C. §2101(c); however, for the reasons more fully discuss-

ed under the heading ‘‘Reasons For Denying the Writ,’’

below, respondent contends that the petition for writ of cer-

tiorari is jurisdictionally out of time.

STATUTES INVOLVED

28 U.S.C. §2101(c) provides:

‘‘Any other appeal or any writ of certiorari intended to

bring any wn or decree in a civil action, suit or

proceeding before the Supreme Court for review shall be

taken or applied for within ninety days after the entry of

such judgment or decree. A Justice of the Supreme

Court, for good cause shown, may extend the time for

applying for a writ of certiorari for a period not ex-

ceeding sixty days.’’

La. Civ. Code art 10 provides in pertinent part:

“The form and effect of public and private written in-

struments are governed by the laws and usages of the

places where they are passed or executed.”’

‘But the effect of acts passed in one country to have ef-

fect in another country, is regulated by the laws of the

country where such acts are to have effect.’’ (Third

paragraph omitted)

STATEMENT OF THE CASE

Many of the allegations made by Hugh S. Hunt

(‘‘Hugh’’) in his petition are untrue or materially misleading.

Hugh has represented to the Court as factual certain matters

which are totally unsupported by the record and, in some in-

stances, intentionally ignored the factual findings of the lower

courts.' Clearly it is not the function of the Court on petition

' Hugh begins his Statement of the Case by recounting Mrs. Lee's

allegations concerning her claim of putative marriage to the late H.

L. Hunt, With no support in the record, Hugh has stated this claim,

representing nothing more than a mere contention, as though it

were factual. Throughout the litigation the Estate strenuously has

disputed the contention that Mrs. Lee and the late Mr. Hunt were

ever wed. As a practical matter, the January 16 settlement fore-

closed any factual determination respecting Mrs. Lee’s claim of

putative marriage.

Hugh’s assertion in his petition (P. 3) that the compromise about

which this action is concerned was prompted by the ex parte ad-

for writ of certiorari to review the accuracy of factual fin-

dings entered below; accordingly, respondent will not counter

Hugh’s assertions point by point. However, for the sake of

clarity and coherence, the following narration of relevant

facts is offered:

On November 11, 1975, Mrs. Frania Tye Lee (‘‘Mrs.

Lee’’) filed her complaint (the ‘“‘Lee Suit’’) in the United

States District Court for the Middle District of Louisiana

against Ray Lee Hunt, Executor of the Estate of H. L. Hunt

(the ‘‘Estate’’), seeking to be recognized as the putative

spouse of the late H. L. Hunt and, as such, entitled to an un-

divided one-half interest in all property acquired during the

alleged putative relationship.

The Lee Suit was transferred to the Western District of

Louisiana, Shreveport Division.? The matter was tried to a

vice of the District Judge is completely without basis in the record.

Moreover, the District Judge’s letter to Mrs. Lee (attached as Ap-

pendix E to Hugh's petition) was never introduced by Hugh, does

not form part of the record, and its existence was heretofore

unknown to the Estate.

? The basis for the transfer of the action from the Middle District

of Louisiana was that Court’s ruling that Mrs. Lee was not a ‘“‘resi-

dent’’ of the Middle District of Louisiana so as to establish venue

under 28 U.S.C. §1391(a). Mrs. Lee, having been a resident of

Atlanta, Georgia, continuously for thirty years, had moved to

Baton Rouge, Louisiana, (seat of the Middle District) only eight

days prior to the commencement of her action. Admittedly the sole

purpose of Mrs. Lee’s move to Baton Rouge was to establish the

Middle District of Louisiana as a district of proper venue, as she

did not wish to sue the Estate in Dallas, the home of the late Mr.

Hunt. The District Court properly concluded that Mrs. Lee was not

a “‘resident’’ of Louisiana for purposes of venue. After commence-

ment of the lawsuit Mrs. Lee returned to Atlanta, where she has liv-

ed since. The Master Settlement Agreement (which is of record),

which was signed by Mrs. Lee in Atlanta September 15, 1978, ex-

pressly states that Mrs. Lee is a resident of that city. Hugh’s asser-

tion in his petition that Mrs. Lee is a ‘‘resident’’ of Louisiana is

4

jury for six days, ending January 16, 1978. On that date,

prior to the conclusion of trial, Mrs. Lee, the Estate, and

others interested in the Lee Suit (including Hugh) reached a

compromise and settlement (the ‘‘January 16 Settlement’’).

The agreement was dictated in detail to the Court reporter in

the presence of the Court. During a brief recess the dictated

settlement was transcribed, following which it was executed by

the parties in the presence of the Court.’ On the basis of the

January 16 Settlement the District Court discharged the jury

and, on January 23, 1978, entered a judgment of dismissal of

the Lee Suit, with prejudice.

In the course of dictation of the January 16 Settlement

the signatories, including Hugh, stipulated that each, for the

members of their respective families was authorized ‘‘to speak

on behalf of the other members”’ of their respective families,

and that the purpose of the settlement was ‘‘to bring this en-

tire litigation to a conclusion and in addition to this litigation

simply a deliberate misstatement of fact. See: Lee v. Huni, 410 F.

Supp. 329 (M.D. La. 1976).

On rehearing, the District Court for the Middle District permitted

the action to be transferred to the Shreveport Division of the

Western District of Louisiana on the basis of Mrs. Lee's claim that

the putative matrimonial domicile was in Shreveport from

1926-1930; on the basis of such contention the Court held that

Shreveport could be where the claim arose. 28 U.S.C. §1391(a). See:

Lee v. Hunt, 415 F. Supp. 245 (M.D.La. 1976).

* Hugh has attached only a small part of the January 16 Settle-

ment in the Appendix to his petition. The entire transcript is in-

cluded in the record. Hugh attempted in the lower courts to make

much of the fact that he absented himself from a portion of the dic-

tation of the January 16 Settlement; however, as stated by the

District Court in its Memoranum Ruling (App. E, infra), Hugh was

given a complete copy of the January 16 Settlement for his con-

sideration, and he was afforded the opportunity to and did read and

sign the document in the presence of the Court, acknowledging to

the Court that he understood its terms before signing. (App. E,

p.3la)

5

any other claims of any nature or kind which any member of

the Hunt family may have one against the other of any nature

or kind. . .’’ It was agreed in the January 16 Settlement:

‘*That Mrs. Lee and all her descendants would sign a

release releasing all parties from any claim, including

future inheritance rights in the estate of any members of

the Hunt family, which release will contain appropriate

indemnity provisions, and the other Hunt families will

give a similar release to the Estate of Mrs. Lee or her

descendants .. .”’

In return for this complete and final settlement the Estate

and other Hunt family members agreed to pay the sum of

$7,500,000.00. The allocation of consideration among Mrs.

Lee and her descendants was, by agreement of the parties, left

to the discretion of Mrs. Lee.

Immediately following the settlement, attorneys for the

parties (which included all attorneys present during the

January 16 Settlement) began preparation of documents

necessary to implement all relevant terms and provisions

agreed upon in the January 16 Settlement. The form of

documentation chosen was an omnibus agreement styled

**Master Settlement Agreement’’ and seventeen ‘‘Assignment

of Expectancy Agreements’’, designed to encompass a

memorial of all terms and provisions of the January 16 Settle-

ment and to effect the releases and waivers which it required.

The events which transpired following the January 16

Settlement are unimportant here. Suffice it to say that by

September 15, 1978, the Master Settlement Agreement and

Assignment of Expectancy Agreements had been executed by

all required signatories, save Hugh.‘ Although tendered a

copy of the settlement documents for execution, Hugh declin-

ed to sign.

* The parties to the Master Settlement Agreement were for con-

venience identified in three groups: Group |, consisting of Mrs. Lee

and her descendants: Mark Steven Lee of Houston, Texas,

Haroldina Hunt Lee Franch and Ronald A. Cartledge of Atlanta,

6

On September 26, 1978, the Estate filed its Petition to

Enforce Settlement Agreement, praying, among other things,

(1) that Hugh be joined as 2 named defendant, (2) that Hugh

be directed to appear before the Court to show cause why the

settlement should not be enforced, and (3) for entry of judg-

ment (a) declaring all parties to the January 16 Settlement

bound by the terms and conditions of the Master Settlement

Agreement and Assignment of Expectancy Agreements, and

(b) specifically enforcing the settlement against Hugh by re-

quiring his compliance with its terms and the terms of the

Master Settlement Agreement. By orders executed the same

day the District Court joined Hugh as a named defendant

pursuant to Fed. R. Civ. P. 19(a) and directed him to appear

at a plenary hearing December 7, 1978, to show cause why the

settlement should not be enforced against him by the District

Court.

In response to the Estate’s peititon, Hugh filed two mo-

tions. The first, styled ‘‘Motion to Vacate or Modify Judg-

ment Under Rule 60(b), F.R.C.P.”’ requested that the Court

vacate or modify its prior judgment of dismissal in the Lee

Suit so as to exclude Hugh from the January 16 Settiement.

Hugh’s second motion, styled ‘‘Motion to Dismiss For Lack

of Jurisdiction Over Subject Matter and Over Person of The

Defendant And For Lack of Venue Under Rule 12(b)

F.R.C.P.,”" requested that the District Court dismiss the

Georgia, and Hugh, of Potomac, Maryland; Group 2, consisting of

the children born to Mr. Hunt and his first wife, the late Lyda

Bunker Hunt: Margaret Hunt Hill, Haroldson L. Hunt, Jr.,

Caroline Hunt Schoellkopf, Nelson Bunker Hunt, William Herbert

Hunt, and Lamar Hunt, all of Dallas, Texas; and Group 3, con-

sisting of Mr. Hunt's widow, Mrs, H. L. (Ruth Ray) Hunt; and

their children: Ray Lee Hunt, Ruth June Hunt and Helen Hunt

Kreiling, all of Dallas, Texas, and Swanee Hunt Meeks, of Denver,

Colorado, The Estate appeared in the Master Settlement Agreement

through Ray Lee Hunt, independent executor pursuant to the Last

Will and Testament of H. L. Hunt and Codicil duly probated in

Dallas County, Texas, December 16, 1974 in Cause No.

74-3363-CP.

7

Estate’s petition pursuant to Fed. R. Civ. P. 12(b) (1), (2), (5)

and (6). By express stipulation of Hugh’s counsel at the

plenary hearing December 7, 1978 (Hugh was represented at

the time), Hugh’s Rule 60(b) motion, based upon the alleged

invalidity of the January 16 Settlement, was withdrawn and

abandoned.’ Hugh’s jurisdictional motion was referred to the

merits.

On December 19, 1979, the District Court entered its

Memorandum Ruling (App. E, infra) holding the January 16

Settlement to be a valid agreement, lawfully entered into and

binding upon all parties. The Court further held the Master

Settlement Agreement and Assignment of Expectancy

Agreements to contain a full and fair reflection of the terms

and provisions of the January 16 Settlement. In accordance

with its Memorandum Ruling the District Court on December

27, 1979 entered a Final Judgment (App. D, infra) ordering

Hugh’s execution of the settlement documents, or in the event

of Hugh’s failure to comply, their execution by the Clerk of

Court to have like effect as if performed by Hugh pursuant to

Fed. R. Civ. P. 70.

On December 28, 1979, Hugh moved for a new trial. The

District Court denied Hugh's motion January 15, 1980, and

on January 31, 1980, Hugh noticed an appeal.

Following completion of its screening procedures, the

U.S. Court of Appeals for the Fifth Circuit placed the case on

its summary calendar. The Court of Appeals affirmed the

District Court December 1, 1980 (App. C, infra), holding:

**We conclude that the January 16 Settlement Agreement

embodied in the transcript of the conference held that

* For reasons not clear Hugh erroneously asserts in his petition

(p. 5) that his 60(b) motion, although specifically excluded from the

scope Of the hearing, was not withdrawn or abandoned. This asser-

tion is clearly contrary to both the record and the opinion of the

Court of Appeals, which, having had the benefit of a complete

transcript of the hearing, observed in its opinion that Hugh's 60(b)

motion had been withdrawn. (App. C, p 6a).

day in the Judge’s chambers is an enforceable contract of

settlement under Texas law and is binding on Hugh

Hunt. We also conclude that the Master Settlement

Agreement reasonably represents the intent of the

January 16 agreement, and that Hugh Hunt may be

bound by its terms. The judgment of the District Court is

affirmed in all respects.’’ (App. C, p.24a).°

On the last day of the period within which to petition the

Court of Appeals for rehearing Hugh applied for an extension

of time within which to do so. Hugh was granted an extension

of time until and including December 29, 1980, within which

to petition the Court of Appeals for rehearing, and he did so

on that date. By order entered January 13, 1981 (App. B, in-

fra) the Court of Appeals denied Hugh’s petition for

rehearing.

According to the provisions of 28 U.S.C. §2101(c), the

ninety day period within which Hugh might properly petition

this Court for a writ of certiorari would have expired April

13, 1981. However, by order entered April 9, 1981, Justice

Powell afforded Hugh an extension until and including April

30, 1981, within which to file such a petition. (App. A, infra).

On the final day of his extension Hugh presented his petition

in typewritten form to the Clerk of Court. As Hugh had not

sought and obtained leave to proceed in forma pauperis, the

Clerk, acting pursuant to Rule 33.7 of the Rules of this

Court, properly declined to accept Hugh’s petition for filing.

The Clerk returned the petition to Hugh, advised him of the

requirement that the petition be printed in compliance with

Rule 33, and instructed Hugh that properly printed copies

* Despite the fact that both the District Court and Court of Ap-

peals squarely held that the Master Settlement Agreement represents

a full and fair reflection of the intent of the parties to the January

16 Settlement (a factual finding) Hugh continues in this Court to

press his litany of complaints respecting alleged significant dif-

ferences in the agreements. For a response to Hugh's factual

arguments in this regard, the Estate respectfully refers the Court to

the opinions of the District Court and Court of Appeals.

9

must be filed.’ As appears from Hugh’s certificate of service

(App. F, infra), it was not until June 16, 1981, one and one-

half months later, that Hugh filed his petition for writ of cer-

tiorari in printed form in compliance with the instructions

given him by the Clerk.

REASONS FOR DENYING THE WRIT

1. The Court Is Without Jurisdiction To Entertain Hugh's

Petition For Writ Of Certiorari.

Hugh’s petition for writ of certiorari is jurisdictionally

out of time. 28 U.S.C. §2101(c), the controlling statute, pro-

vides in pertinent part:

“Any ... writ of certiorari intended to bring any judg-

ment or decree in a civil action, suit or proceeding before

the Supreme Court for review shall be taken or applied

for within ninety days after the entry of such judgment

or decree. A Justice of the Supreme Court, for good

cause shown, may extend the time for applying for a writ

of certiorari for a period not to prscee sixty days.’’

Where, as in this case, there has been a petition for

rehearing in the Court of Appeals, the ninety day period

begins to run from the date of denial or other disposition of

petition for rehearing. Rule 20.4, Rules of the Supreme

Court. Accordingly, the period afforded Hugh under the

quoted statute began January 13, 1981, the date of the Court

of Appeals’ denial of Hugh’s petition for rehearing.

It is clear from the literal language of 28 U.S.C. §2101(c)

that the maximum time which may be afforded any litigant in

a civil action to petition the Supreme Court of the United

States for a writ of certiorari is 150 days. As shown by the

record (App. F, infra), Hugh’s petition, although backdated

to April 30, 1981, was not filed in compliance with Rule 33

’ This information was obtained by telephone discussions between

counsel for the Estate and various personnel in office of the Clerk

of the Supreme Court.

10

until June 16, 1981, 154 days following the beginning of the

period triggered by the Court of Appeals’ denial of Hugh’s

petition for rehearing.

The delays fixed for seeking review in the Supreme Court

of the United States fall generally into two categories: (1)

those established by the Rules of the Supreme Court pursuant

to authority conferred upon the Court by statute; e.g. Rule

20.1, promulgated pursuant to 18 U.S.C. §3772 and 28

U.S.C. §2101(d); and (2) those specifically fixed by congres-

sional act; e.g. 28 U.S.C. §2101(a), (b) and (c). Although

delays of the former sort have been held to be subject to

relaxation by the Court in the exercise of its discretion;

Schacht v. U.S., 398 U.S. 58 (1970); Taglianetti v. U. S., 394

U.S. 316, n.1 (1969); the statutory delays uniformly have been

treated as jurisdictional. Schacht v. U.S., 398 U.S. 58 (1970);

Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399

(1923). The rationale for the distinction was articulated by

Justice Harlan in his concurring opinion in Schacht v. U.S.,

398 U.S. 58 (1970):

‘*... IT [do not] find it at all anomalous that this Court

on occasion waives the time limitations imposed by its

own Rules yet treats the time requirements imposed by

statute as jurisdictional. As a matter of statutory inter-

pretation, the Court has not presumed the right to extend

time limits specified in statutes where there is no indica-

tion of a congressional purpose to authorize the Court to

do so. Because we cannot ‘waive’ congressional enact-

ments, the statutory time limits are treated as jurisdic-

tional.’’ 398 U.S. at 68.

In Matton Steamboat Co. v. Murphy, 319 U.S. 412

(1943), the Court, holding the thirty day delay for appeal in

civil cases provided by 28 U.S.C. §2107 mandatory and

jurisdictional, stated as the purpose of the rule the need ‘‘to

set a definite point of time when litigation shall be at an end,

unless within that time the prescribed application has been

made; and if it has not, to advise prospective appellees that

they are freed of the appellant’s demands. Any other con-

struction of the statute would defeat its purpose.’’ Matton

Steamboat v. Murphy, 319 U.S. 412, at 415 (1943).

The Estate suggests that the rationale stated by the Court

in Matton as underpinning the jurisdictional nature of the

delay for appeal provided by 28 U.S.C §2107 applies with

equal force to the statutory delay for application for writ of

certiorari provided by 28 U.S.C. §2101(c). There should come

a time when a litigant successful in the Court of Appeals can

be secure in knowing that a favorable judgment or other

order is final and no longer subject to review on writ of cer-

tiorari. By treating the delays provided by 28 U.S.C. §2101(c)

as jurisdictional, this purpose is achieved precisely.

The Estate recognizes that Hugh’s belated petition was

tendered to the Clerk pursuant to Rule 33.7 of this Court,

which provides in pertinent part:

“The Clerk shall not accept for filing any document

presented in x form not in compliance with this Rule, but

shall return it indicating to the defaulting party wherein

he has failed to comply; the filing, however, shall not

thereby be deemed untimely provided that new and

proper copies are promptly substituted. If the Court shall

find that the provisions of this Rule have not been

adhered to, it may impose, in its discretion, appropriate

sanctions including but not limited to dismissal of the ac-

tion, — of costs, or disciplinary sanction upon

counsel.”’

So long as any substitution of ‘‘new and proper copies’’

of a petition for certiorari which may be required by the

Clerk under the Rule occurs within the delays prescribed by

28 U.S.C. §2101(c), the Rule and the statute remain compati-

ble. However, where, as here, a petitioner for certiorari fails

to substitute new and proper copies of his petition as required

by the Clerk during the jurisdictional period, the statute and

the Rule fall into apparent conflict. In such instance, the

: 12

Estate submits, the Rule must give way to the statutory

jurisdictional time limitations."

Clearly here such an interpretation would work no

undeserved result. Even though Hugh waited until the last day

of his extension to present his typewritten petition for cer-

tiorari, there remained at that time forty-three days of the

jurisdictional period within which Hugh might substitute new

and proper copies of his petition in accordance with Rule 33.

Hugh simply failed to do so, and, having failed to do so, his

petition should be dismissed or denied.

A second, and equally viable, reason for dismissing or de-

nying Hugh’s petition is his noncompliance with the require-

ment of Rule 33.7 that new and proper copies be promptly

substituted, In waiting nearly seven weeks to substitute pro-

perly printed copies of his petition for certiorari, Hugh can

hardly be said to have been ‘‘prompt.’”’ In light of Hugh’s

obvious delay in carrying out the instructions of the Clerk, the

Estate respectfully submits that the sanction of dismissal

stipulated in Rule 33.7 should be imposed.

2. The Court of Appeals Fully Considered And Correctly

Decided All Issues Presented For Review By Petitioner.

Hugh has articulated no valid reason for granting his writ

in accordance with the provisions of Rule 17 of this Court.

He simply complains because the Court of Appeals, in the ex-

"A different result might follow if timely petitions in improper

for were filed and docketed, with proper copies later substituted.

Under the Rules promulgated by the Court, however, the Clerk is

directed expressly not to accept petitions in improper form. Of

course, the anomaly here presented should not often occur, for a

petitioner submitting an improper petition on the ninetieth day

should have sixty jurisdictional days remaining under the Rule

within which to substitute new and proper copies of his petition.

* Had Hugh been diligent in having his petition printed in proper

form when so instructed by the Clerk, new and proper copies could

have been substituted in a matier of days.

13

ercise of its Erie/Klaxon'® responsibility to determine the ap-

plicable substantive law by which to judge certain of Hugh’s

objections concerning the validity of the January 16 Settle-

ment, employed the interest analysis principles of the Restate-

ment, Second, Conflicts of Laws (1969). Although Hugh

charges the Court of Appeals with error in (i) injecting in-

terest analysis principles in Louisiana’s law, where he claims

they do not otherwise exist; and (ii) allegedly ignoring a

statutory directive of the forum state respecting choice of law,

an examination of Louisiana law reveals that Hugh’s

arguments clearly miss the mark.

(a) Louisiana Explicitly Has Adopted The Choice Of

Law Rules Of The Restatement, Second, Conflicts

Of Laws (1969).

Louisiana by a decision of its Supreme Court has joined

the ranks of states which employ the modern choice of law

rules embodied in the Restatement, Second, Conflicts of Laws

(1969); therefore, according to the teaching of Klaxon Co. v.

Stentor Electric Manufacturing Co., 313 U.S. 487 (1941), the

Fifth Circuit’s selection of applicable substantive state law in

this case by reference to those principles was eminently

correct.

For some years prior to 1970, there began to appear in

the decisions of Louisiana’s intermediate courts of appeal the

suggestion that Louisiana ought to follow a more modern ap-

proach to the resolution of conflicts of laws issues, one based

on interest analysis.'' That notion initially was rejected by the

'® Erie R. R. Co. v. Tompkins, 304 U.S. 64 (1938); Klaxon Co. v.

Stentor Electric Manufacturing Co., 313 U.S. 487 (1941).

'' See: e.g.: Universal C.1.T. Credit Corp. v. Hulett, 151 So. 2d

705 (La. App. 3rd Cir. 1963); Blanchard v. Blanchard, 180 So. 2d

564 (La. App. 3rd Cir. 1965) (concurring opinion of Judge Tate).

The Authority cited for the proposition that Louisiana should adopt

the principles of interest analysis was La. Civ. Code art. 10.

14

Supreme Court of Louisiana in Johnson v. St. Paul Morcury

Insurance Co., 236 So. 2d 216 (La. 1970), where the Court re-

quired strict adherence to the rule of /ex loci delicti (place of

injury) or ‘‘vested rights,’’ as dictating the choice of law in

actions in tort.'?

Three years later, however, in Jagers v. Royal Indemnity

Co., 276 So. 2d 309 (La. 1973), the Supreme Court of Loui-

siana expressly reversed its opinion in Johnson and abandon-

ed the traditional rule of /ex loci deliciti in favor of the more

modern notions of interest analysis. In Jagers, the plaintiff

and her minor son, citizens of Lousiana, had an automobile

accident while traveling in Mississippi. The son was driving.

Mrs. Jagers sued her son’s automobile liability insurer in

Louisiana for recovery of personal injuries sustained in the

accident. The insurer defended on the grounds that Mrs.

Jager’s action against her son was barred under Mississippi

law. The Supreme Court of Louisiana rejected the insurer’s

contention that the law of Mississippi necessarily must apply,

finding instead a ‘‘false’’ conflict of laws question. Such

posture ‘‘occurs when it is found that only a single state has

an interest in the application of its law, and that the other

state has no interest in the application of its law in the case.”’

276 So. 2d at 311. Finding under interest analysis that

Mississippi, the place of the injury, had virtually no interest in

the application of its law, the Supreme Court of Louisiana

directed that Louisiana substantive law should supply the rule

'? As more fully appears from the discussion, infra, even prior to

Louisiana’s adoption of the Restatement the courts of Louisiana did

not subscribe in all instances to the companion rule of /ex loci con-

tractus. Instead, in aceordance with La. Civ. Code Art. 10, the

general rule was said to be that the rights and obligations of the

partics to a contract were determined by the law of the place where

the agreement was to have effect. See: DeMary v. Fontenot, 161 So.

2d 82 (La. App. 3rd Cir. 1964), and cases there cited.

15

of decision. Casting aside the old rule, the Supreme Court of

Louisiana stated:

“That some modern methods for determining whether to

apply the law of the forum are faulty in some res

should not deter a court in the application of the law of

the forum to its citizens, when not otherwise prohibited.”’

276 So. 2d at 312.

As a footnote to the quoted statement, the Supreme Court of

Louisiana directed: ‘‘For choice of law principles, see Restate-

ment, Second, Conflict of Laws, §6 (1969). . .”’ 276 So. 2d

at 312."

The first occasion for an Erie/Klaxon analysis of Jagers

by the Fifth Circuit came in Brinkley & West, Inc. v.

Foremost Insurance Co., 499 F.2d 928 (Sth Cir. 1974). After

first noting in Brinkley & West, Inc. that Jagers involved a

‘false’ conflicts issue, the Fifth Circuit went on to conclude

on the basis of the Supreme Court of Louisiana’s express

reference to the principles of the Restatement, Second, Con-

flicts of Laws (1969) that Louisiana courts in cases of true

conflicts would determine applicable state law by reference to

those principles to discern from among the interested states

that with the most significant relationship to a particular case

'? Restatement, Second, Conflict of Laws, §6 (1969), quoted by

the Supreme Court of Louisiana, provides: ‘‘(1) A Court, subject to

constitutional restrictions, will follow a statutory directive of its

own state on choice of law, (2) When there is not such directive, the

factors relevant to the choice of the applicable rule of law include:

‘*(a) the needs of the interstate and international systems,

‘*(b) the relevant policies of the forum,

““(c) the relevant policies of other interested states and the

relative interests of those states in the determination of the par-

ticular issue,

**(d) the protection of justified expectations,

**(e) the basic policies underlying the particular field of law,

““(f) certainity, predictability and uniformity of result, and

, (6) case in the determination and application of the law to be

applied.”’

16

or occurrence.'* Post - Jagers Louisiana jurisprudence has

shown that the Fifth Circuit in Brinkley & West, Inc. could

not have been more correct.

In Sutton v. Langley, 320 So. 2d 321 (La. App. 2d Cir.

1976), writ den. 333 So. 2d 242 (1976), a case upon which

Hugh relies, the Louisiana Second Circuit Court of Appeal

expressly interpreted the Jagers decision ‘‘to direct that the

‘interest analysis’ theory for resolving choice of law problems

in Louisiana is now the proper approach.”’ 330 So. 2d at 326.

The Court went on to interpret Jagers ‘‘. . . as authority for

abandoning rigid application of the /ex loci contractus rule

..”’ and applied modern principles of interest analysis to

resolve the choice of law issues there presented. 330 So. 2d at

328.

In Wayne v. Olinkraft, Inc., 293 So. 2d 896 (La. App. 2d

Cir. 1974) writ den. 294 So. 2d 827 (1974), the Court observ-

ed that “‘[t}hroughout the opinion in Jagers and its progeny

we find an effort to bring clarity to our law in a realistic way

and in so doing Restatement, Second, Conflict of Laws, is

cited several times.’’. 293 So. 2d at 898. The Court in Wayne

went on to quote extensively from and to apply the conflicts

principles of the Restatement.'’

As can readily be seen from the jurisprudence, interest

analysis was not, as Hugh charges, ‘“‘imposed’’ upon Loui-

siana law by the federal judiciary.'* To the contrary, the

'* Hugh disputes the Fifth Circuit’s holding because the Court in

Jagers adopted the Restatement principles by footnote. As this

Court observed in Schacht v. U.S., 398 U.S. 58 (1970), this certain-

ly ‘tis no reason to disregard [the] holding .. ."* 398 U.S. at 64.

'* See also; Wickham v. Prudential Ins. Co. of America, 366 So.

2d 951 (La. App. Ist Cir. 1978); Davis v. Mumble Oil, & Refining

Co., 283 So. 2d 783 (La. App. Ist Cir. 1973). Contrary to Hugh's

argument that Louisiana has employed interest analysis only to ex-

tend the application of its law, in Wayne and Davis interest analysis

was ulilized to apply foreign law in a Louisiana forum.

'* Hugh argues that because Brinkley & West, Inc., a tederal ap-

pellate decision, has not been cited by the state courts of Louisiana,

its holding must be incorrect. This argument has ne merit; since the

17

federal district courts of Louisiana, charged with the respon-

sibility in diversity cases to sit, ‘‘in effect, [as] another court

of the State,’’ Angel v. Bullington, 330 U.S. 183 (1947),

dutifully have followed the state courts’ lead and likewise

uniformly have held that the choice of law principles of the

Restatement provide the rule for resolution of conflicts in the

State of Louisiana. See, e.g.: Southern Insurance Co., v.

Consumer Insurance Agency, Inc., 442 F. Supp. 30 (E.D. La.

1977); Ardoyno v. Kyzar, 426 F. Supp. 78 (E.D. La. 1976);

Commercial Union Insurance Co. v. The Upjohn Co., 409 F.

Supp. 453 (W.D. La. 1976).

Against this backdrop, Hugh’s argument that the Fifth

Circuit somehow acted improperly in referring to the choice

of law principles of the Restatement simply cannot be ac-

cepted. Hugh has not cited to the Court even one authority

for the proposition that the application of such principles is at

variance with the choice of law rules of Louisiana. Instead,

from the premise that Day and Zimmerman, Inc. v.

Challoner, 423 U.S. 3 (1975) a diversity case arising in Texas,

properly forbade the disregard of Texas choice of law rules in

the determination of applicable law, Hugh leaps to the conclu-

sion that the Court of Appeals here committed ‘“‘legal

‘mischief’’ in identifying the choice of law principles of the

Restatement as properly applicable in a Louisiana forum. A

brief analysis of the Challoner decision in the context of Loui-

siana’s development of choice of law rules shows the fallacy

of Hugh’s argument.

Prior to the decision of the Supreme Court of Louisiana

in Jagers, the Fifth Circuit in Lester v. Aetna Life Insurance

state courts of Louisiana are not bound by federal interpretations of

state law, it is not surprising a federal decision would not be cited

as authority. What is significant, and underscores the propriety of

the Fifth Circuit's interpretation of Jagers in Brinkley & West, Inc.,

is the fact that the Supreme Court of Louisiana declined to review

the decisions in Sutton and Wayne, both of which applied interest

analysis on the stated authority of Jagers.

Co., 433 F.2d 884 (Sth Cir. 1970), a Louisana diversity case,

carved out an exception to the rule of Klaxon, holding that a

forum state’s choice of law rules need not be followed in the

instance of a ‘‘false conflict;’’ i.e., where only one state has a

legitimate interest in the outcome of litigation. Certiorari was

denied. 402 U.S. 909 (1971). Five years later, however, when

the Fifth Circuit declined to apply the choice of law rules of

Texas on the basis of the identical exception in Challoner v.

Day and Zimmerman, Inc., 512 F.2d 77 (Sth Cir. 1975), this

Court granted certiorari and reversed. Day and Zimmerman,

Inc. v. Challoner, 423 U.S. 3 (1975). In a per curiam opinion,

this Court held:

‘“‘By parity of reasoning, the conflict-of-law rules to be

applied by a federal court in Texas must conform to

those prevailing in the Texas state courts. A federal court

in a diversity case is not free to engraft onto those state

rules exceptions or modifications which may commend

themselves to the federal court, but which have not com-

mended themselves to the State in which the federal court

sits. The Court of Appeals in this case should identify

and follow the Texas conflicts rule. What substantive law

will govern when Texas’ rule is applied is a matter to be

determined by the Court of Appeals.’’ 423 U.S. at 5.

Fairly read, Hugh’s argument states nothing more than

his contention that because the Fifth Circuit in Challoner once

improperly declined to employ applicable state conflicts laws

in a Texas diversity case, it must have again done so in this

Louisiana diversity action. Perhaps that would be so had the

Fifth Circuit here attempted to ‘‘engraft’’ onto Louisiana’s

choice of law rules some principle not otherwise there;

however, as is clear from the above discussion of the recent

development of Louisiana’s choice of law rules, no such thing

has occurred.

To the contrary, subsequent to Lester, the Supreme

Court of Louisiana in Jagers adopted precisely the modern

approach which the Court of Appeals has applied in the case

19

at hand.'’ By here carefully identifying and faithfully applying

the choice of law rules announced by the courts of Louisiana,

the Fifth Circuit clearly has carried out its Erie/Klaxon

responsibilities in complete accord with the command of

Challoner. A grant of certiorari, therefore, is unwarranted.

(b) The Decision Of The Fifth Circuit Comports Com-

pletely With La. Civ. Code Art. 10.

Hugh’s argument that the Fifth Circuit’s decision is in-

compatible with La. Civ. Code art. 10 is equally specious.

Hugh pegs his contentions solely upon the provision of that

article stating the general rule that the ‘‘form and effect of

public and private written instruments are governed by the

laws and usages of the places where they are passed or ex-

ecuted.’’ Thus, Hugh claims, unless there is an exception to

this rule, Louisiana law must apply in view of the fact that

the January 16 Settlement was executed in a federal court

located in Louisiana. Hugh’s argument fails, however,

precisely because such an exception is provided by the second

sentence of La. Civ. Code art. 10, which Hugh fails to cite,

stating:

‘But the effect of acts passed in one country to have ef-

fect in another country, is regulated by the laws of the

country where such acts are to have effect.’’

'’ Making the identical point, the Court of Appeals remarked that

the Jagers opinion was rendered ‘‘subsequent to Challoner.’’ The

Estate suggests that the Court obviously intended a reference to

Lester, and the reference to Challoner was simply an inadvertent

reference. The Estate scarcely believes, as Hugh suggests, that the

Fifth Circuit was attempting to ‘‘alter the calendar’’ in an effort to

flaunt this Court. Of course, from a legal viewpoint it makes no

difference whether Jagers preceded or followed Challoner. The

critical fact is that the Supreme Court of Louisiana’s adoption of

the modern conflicts approach in Jagers preceded the case at hand.

20

In applying this provision to dispose of Hugh’s objections

to the application of Texas law, the District Court held suc-

cintly:

**The final subject of dispute consists of Hugh’s related

objections to the choice of Texas law to govern the agree-

ment, and to the waiver of future inheritance rights.

Hugh properly asserts that Louisiana law looks with

disfavor upon attempts to waive future inheritance rights.

However, as none of the parties reside in Louisiana, that

substantive policy is of no consequence. Art. 10 of the

Civil Code requires application of the law of the place

where the contract is to have effect, which, in the case of

the persons being released by Hugh, is Texas. Hugh does

not claim that the waiver is void under the law of Texas.

‘*For the same reason, it is clear that the parties intended

Texas law to govern the agreement. Under accepted

canons of construction, the parties must be deemed to

have intended to create an enforceable contract. A court

should not lightly read an agreement in such a way as to

frustrate this intent. To require application of Louisiana

law would defeat the aim of the parties, most of whom

reside in Texas. Accordingly, the Court finds that the

Master Settlement Agreement properly reflects the intent

of the parties to the January 16 agreement.’’ (App. E,

P.43a-44a).'*

'* In its original typewritten Memorandum Ruling, distributed to

the parties by the Court, the Court included a typographical error in

the quoted material to the effect that most of the parties ‘‘reside in

Louisiana.’’ The error was brought to the attention of the Court

and corrected in the version submitted for publication. See: Lee v.

Hunt, 483 F. Supp. 826 (W.D. La. 1979), at 837. Nonetheless, in

his petition (P. 10), Hugh deliberately has quoted from and includ-

ed in the Appendix (P. D 15) the unpublished, erroneous version of

the District Court’s Memorandum Ruling, stating that most of the

parties reside in Louisiana. As the Estate has pointed out at n. 4,

above, none of the parties to the January 16 Settlement was a resi-

dent of Louisiana; the District Court was quite correct in pointing

out that the great majority of the parties reside in Texas.

21

As the Fifth Circuit held, the District Court’s analysis in

this regard is clearly correct. None of the parties to either the

January 16 Settiement or Master Settlement Agreement is

domiciled in Louisiana. Virtually all of the parties primarily

interested in the waiver of inheritance rights (the Estate,

members of Group 2, and members of Group 3) are domiciled

in Texas; the great bulk of their property is located there; and

it is there that the waiver of inheritance rights will be

operative. Thus the selection of Texas law to govern the inter-

pretation and validity of this element of the January 16 Settle-

ment and Master Settlement Agreement comports completely

with the requirement of La. Civ. Code art. 10 that: ‘*‘... the

effect of acts passed in one [state], is regulated by the laws of

the [state] where such acts are to have effect.’’'®

The interpretation given La. Civ. Code art. 10 by the

Fifth Circuit and District Court is in complete accord with the

treatment given that article in the Louisiana jurisprudence. As

stated in Universal C.I.T. Credit Corp. v. Hulett, 151 So. 2d

705 (La. App. 3d Cir. 1963):

** ‘In Louisiana, the rule has been generally stated to be

that the law of the place where the contract is to have ef-

fect determines the rights and obligations of the par-

ties.’ ’’ 151 So. 2d at 707, and authorities there cited.

See also: DeMary v. Fontenot, 161 So. 2d. 82 (La. App.

3d Cir. 1964) writ den. 163 So. 2d 360 (1964).

To the extent Hugh is viewed as arguing that La. Civ.

Code art. 10 (despite its literal language) must nevertheless be

read as requiring adherence to the rule of /ex loci contractus,

it is clear from the Louisiana jurisprudence that such inter-

pretation was put to rest by the decision of the Supreme

'? Texas law expressly condones the waiver or assignment of pro-

spective inheritance rights. See: e.g., Trevino v. Turcotte, 564 S.W.

2d 682 (Tex. 1978); McConwell v. Corgey, 262 S.W. 2d 944 (Tex.

1953).

22

Court of Louisiana in Jagers. See: Sutton v. Langley, 330 So.

2d 321 (La. App. 2d Cir. 1976) writ den. 333 So. 2d 242

(1976); Wickham v. Prudential Ins. Co. of America, 366 So.

2d 951 (La. App. Ist Cir. 1978).

In view of the proper interpretation given La. Civ. Code

art. 10 by the Fifth Circuit and District Court, there exists no

need for review.

3. The Balance Of Hugh’s Cozplaints Involve The Factual

Findings Of The Lower Courts Which Are Not Properly

Subject To Review On Writ Of Certiorari.

Beyond his arguments respecting choice of law, those

complaints which Hugh cites represent nothing more than his

contentions of fact argued to and rejected by both the District

Court and the Fifth Circuit. To this extent, Hugh’s claims in

this Court must be viewed as simply an expression of his

disagreement with the factual conclusions of the lower courts

and dissatisfaction with the result of his case. Such argument,

unsupported by proper reference to the considerations govern-

ing review on certiorari set forth in Rule 17 of the Rules of

the Supreme Court, must be looked upon simply as an at-

tempt by Hugh to relitigate issues decided unfavorably as to

him below. Clearly such is not the function of review on

certiorari.

For the reasons given above, the Fifth Circuit properly

concluded on the basis of Louisiana’s choice of law rules that

Texas law should govern the construction and validity of the

January 16 Settlement and Master Settlement Agreement. This

holding was based not only upon the principles of interest

analysis, but also upon the express factual finding of the

District Court that all parties, including Hugh, intended Texas

law to govern their agreement, which conclusion squarely was

affirmed by the Fifth Circuit.

It is well settled that this Court will not undertake to

review concurrent factual findings entered by two courts

below ‘‘in the absence of a very obvious and exceptional show

23

of error.’’ Graver Mfg. Co. v. Linde Co., 336 U.S. 271, 275

(1949); Berenyi v. Immigration Director, 385 U.S. 630, 635

(1967).

In this regard the only evidence which Hugh can muster

is his claim that he did not intend that Texas laws should con-

trol the terms and provisions of the January 16 Settlement. In-

terestingly, as noted by the Fifth Circuit (App. C, p.12a), in

his initial appeal Hugh did not challenge the holding of the

District Court that, based upon principles of interest analysis,

the law of Texas should apply. Only as an afterthought, in

connection with his petition for rehearing, did Hugh contest

the factual findings of the lower courts respecting the inten-

tion of the parties to the January 16 Settlement and Master

Settlement Agreement.

The Estate suggests that Hugh’s unsupported assertions

respecting alleged errors in the factual findings of the lower

courts do not form a sufficient basis for writ of certiorari. On

the basis of the evidence before them, the lower courts con-

cluded that it was clearly within the contemplation of the par-

ties that Texas law would govern and control the Master Set-

tlement Agreement. To permit Hugh to argue belatedly that

Louisiana law should somehow be employed to invalidate the

January 16 Settlement serves not to protect Hugh’s legitimate

expectations but, rather, serves to perpetuate his admitted

motive of attempting to avoid any and all obligations under-

taken by him in connection with the January 16 Settlement

(App. E, P.39a).

CONCLUSION

Hugh must not be permitted, by his litany of factual

complaints respecting the findings and conclusions of the

Fifth Circuit and District Court, to blur the context in which

this action arose — a proceeding to enforce a compromise and

settlement agreement entered into in the course of pending

federal litigation by compelling Hugh’s execution of the

24

documents necessary to memorialize and implement the terms

and provisions of the agreement.

There simply is no issue at present respecting the en-

forceability of the January 16 Settlement and Master Settle-

ment Agreement or the waiver of future inheritance rights.

Hugh’s petition in no way involves any claim on Hugh’s part

that he effected an unenforceable waiver of inheritance rights

as respects the succession of the late Mr. Hunt. In fact, Mr.

Hunt was deceased for a number of years at the time Hugh

executed the January 16 Settlement; therefore, as respects the

succession of Mr. Hunt, there simply were no ‘‘future’’ in-

heritance rights which Hugh might release.”°

The inherent power of a federal district couri to enforce

a compromise entered into in the context of pending ‘itigation

is well settled. Pearson v. Ecological Science Corp., 522 F.2d

171 (Sth Cir. 1975); cert. den. sub nom., Skydell v. Ecological

Science Corp., 425 U.S.912 (1976); Massachusetts Casualty

Ins. Co. v. Forman, 469 F.2d 259 (Sth Cir. 1972). Thus the

primary issue before the lower courts was whether Hugh

obligated himself pursuant to the January 16 Settlement to ex-

ecute the releases and assignments of inheritance rights con-

templated and required by that agreement with the intention

that such releases and waiver and assignments of inheritance

rights be valid and enforceable in each and every jurisdiction

whose laws might govern a decedent or property involved at

some later date when the inheritance rights so waived or

assigned might become the subject of controversy. The

District Court, finding Hugh so obligated, properly exercised

its power of enforcement, and the Fifth Circuit affirmed.

2° Under the terms of Mr. Hunt’s will, an undivided one-

fourteenth of his Louisiana estate was bequeathed to a trust under

which Hugh is both income and principal beneficiary. This bequest

is unaffected by the January 16 Settlement and Master Settlement

Agreement.

25

For the foregoing reasons, the Fifth Circuit’s affirmance

of the District Court’s decision should stand.

Respectfully submitted,

Sipney E. Cook

Counsel of Record

Cook, YANCEY, Kinc & GALLOWAY

600 Commercial National Bank Bldg.

Shreveport, Louisiana 71101

(318) 221-6277

JACKSON, WALKER, WINSTEAD,

CANTELL & MILLER

4300 First National Bank Bidg.

Dallas, Texas 75202

ONEBANE, DONOHOE, BERNARD, TORIAN,

Diaz, MCNAMARA & ABELL

Suite 700, First National Bank Bldg.

666 Jefferson Street

Lafayette, Louisiana 70501

Attorneys For Respondent, Ray Lee

Hunt, Executor Of The Estate Of

H. L. Hunt

APPENDIX

APPENDIX A

SUPREME COURT OF THE UNITED STATES

No. A-849

Huou S. Hunt, Petitioner,

Vv.

FRANIA TYE Leg, Et AL.

OrpeER EXTENDING TIME TO FILE PETITION FoR

WRIT OF CERTIORARI

UPON CONSIDERATION of the application of petitioner,

It Is ORDERED that the time for filing a petition for writ

of certiorari in the above-entitled cause be, and the same is

hereby, extended to and including April 30, 1981.

/s/_ Lewis F. Powe.., Jr.

Lewis F. Powell, Jr.

Associate Justice of the

Supreme Court of the

United States

Dated this 9th

day of April, 1981.

3a

APPENDIX B

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 80-3211

Mrs. Frania Tye Lee, Plaintiff,

Vv.

Ray Lee Hunt, Executor of

the Estate of H.L. Hunt, Defendant-Appellee,

Vv.

Huou S. Hunt, Defendant-Appellant.

Appeal from the United States District Court for the

Western District of Louisiana

(Filed January 13 1981)

ON PETITION FOR REHEARING

(January 13, 1981)

Before Gee, Rusin and RANDALL, Circuit Judges.

PER CURIAM:

It Is Orperep that the petition for rehearing filed in the

above entitled and numbered cause be and the same is hereby

denied.

ENTERED For THE Court:

/s/ CAROLYN DANIEL RANDALL

Carolyn Daniel Randall

United States Circuit Judge

Sa

APPENDIX C

UNITED STATES COURT OF APPEALS,

FIFTH CIRCUIT.

UNIT A

No. 80-3211

Summary Calendar.

Mrs. FraniA TYE Lee, Plaintiff

Vv.

Ray Lee Hunt, Executor of

the Estate of H.L. Hunt, Defendant-Appellee,

v.

Huau S. Hunt, Defendant-Appellant.

Dec. 1, 1980

Rehearing Denied Jan. 13, 1981

Appeal from the United States District Court for the

Western District of Louisiana

Before Gee, RuBIN and RANDALL, Circuit Judges.

RANDALL, Circuit Judge:

This appeal arises from a suit originally filed in 1975 by

Mrs. Frania Tye Lee, who is the mother of the Appellant

herein, Hugh S. Hunt (a/k/a Hugh Lee Hunt, hereinafter

‘‘Hugh Hunt’’), against the executor of the Estate of H.L.

Hunt, alleging a putative marriage with the late H.L. Hunt

and, as such, an entitlement to a community interest in pro-

perty acquired during the alleged relationship. After lengthy

litigation on jurisdiction, venue and related matters, Lee v.

Hunt, 410 F.Supp. 329 (M.D.La.1976); Lee v. Hunt, 415

6a

F.Supp. 245 (M.D.La.1976); Lee v. Hunt, 431 F.Supp. 371

(W.D.La.1977) the matter was finally tried before a jury be-

tween January 9 and January 16, 1978. On January 16,

counsel for the respective parties requested a conference in

chambers with the trial judge, at which time théy advised the

court that they had reached an agreement of settlement of the

pending lawsuit. The judge requested that the parties dictate

the terms of the agreement to the court reporter in his

chambers. During a brief recess the dictated settlement was

transcribed, and eleven persons-including Hugh Hunt-

thereafter signed it. The district court discharged the jury and,

on January 23, 1978, entered a judgment of dismissal with

prejudice based upon the January 16 settlement. Pursuant to

this agreement, counsel for the Hunt Estate then prepared a

‘master settlement agreement’”’ which spelled out in greater

detail the agreement among the parties. All of the necessary

parties (nineteen in all) signed this document, with the excep-

tion of Hugh Hunt.

Having failed to persuade Hugh Hant, counsel for the

Hunt Estate filed a petition to enforce the settlement agree-

ment on September 26, 1978. On the same date the district

court joined Hugh Hunt as a party defendant to the action,

pursuant to Fed.R.Civ.P. 19a), and ordered him to show

cause why the settlement should not be enforced. In response

to the petition and these orders, Hugh Hunt filed two mo-

tions: (1) to vacate or modify judgment, Fed.R.Civ.P. 60(b);

and (2) to dismiss the petition pursuant to Fed.R.Civ.P.

12(b)(1),(2),(5) and (6), that is, for lack of subject matter and

personal jurisdiction, for insufficiency of service of process,

and for failure to state a claim upon which relief can be

granted. On December 7, 1978, the district court held a

plenary hearing on the petition. At that time counsel for

Hugh Hunt withdrew the Rule 60(b) motion. On December

19, 1979, the district court entered a memorandum ruling, Lee

v. Hunt, 483 F.Supp. 826 (W.D. La.1979), in which it re-

jected all of Hugh Hunt’s Rule 12(b) claims and held that the

January 16 settlement agreement was binding on Hugh Hunt

7a

and that all of the provisions of the master settlement agree-

ment were within the contemplation of the earlier agreement.

Accordingly, the court entered final judgment on December

27, 1979, ordering Hugh Hunt to execute the master settle-

ment agreement.

Hugh Hunt now appeals from this order. He does not

argue with the district court’s rulings under Rule 12(b) and

does not seek to reassert his Rule 60(b) motion. Rather, he

raises a confused variety of factual and legal challenges to the

memorandum ruling and order of the district court. These

arguments fall roughly into the following categories: (1) that

there was no ‘‘meeting of the minds’’ and therefore no con-

tract in the January 16 meeting; (2) that he may avoid the

contract under doctrines of duress, undue influence and

failure of consideration; (3) that the master settlement agree-

ment is not a reasonable expression of the terms of the

January 16 agreement; and (4) that certain provisions of the

agreement are contra bones mares under Louisiana law. We

deal with these arguments in turn after determining the ap-

plicable state law and reviewing the circumstances of the

January 16 agreement.

I. CHOICE OF LAW

A threshold question in this case is the choice of law by

which the settlement agreement should be judged. Although

federal courts possess the inherent power to enforce agree-

ments entered into in settlement of litigation,' the construc-

tion and enforcement of settlement agreements is governed by

principles of state law applicable to contracts generally. E. g.,

Florida Education Association, Inc. v. Atkinson, 481 F.2d 662

(Sth Cir. 1973). In accordance with Klaxon Co. v. Stentor

' E.g., Pearson v. Ecological Science Corp., 522 F.2d 171 (Sth

Cir. 1975), cert, denied sub nom. Skydell v. Ecological Science

Corp., 425 U.S. 912, 96 S.Ct. 1508, 47 L.Ed.2d 762 (1976);

Massachusetts Casualty Insurance Co. v. Forman, 469 F.2d 259

(Sth Cir. 1972); Cia Anon Venezolana de Navegacion v. Harris, 374

F.2d 33 (Sth Cir. 1967).

8a

Electric Manufacturing Co., Inc., 313 U.S. 487, 61 S.Ct.

1020, 85 L.Ed. 1477 (1941), and its progeny, federal courts

must, in such cases, apply the choice of law rules of the

forum state, in this case Louisiana. Thus, the district court

correctly referred to La.Civ.Code Art. 10, which provides, in

pertinent part:

The form and effect of public and private instruments

are governed by the laws and usages of the places where

they are passed or executed.

It is not immediately clear how the district court went from

this provision to the conclusion that Texas law applies in this

case; the contract of settlement was executed in Louisiana.’

Nevertheless, a close analysis of the applicable choice of law

principles convinces us that Texas law does govern the inter-

pretation of the settlement agreement.

Louisiana choice of law rules (and their interpretation by

federal courts) have been in a state of confusion for some

time. During the 1960’s a line of cases evolved in both the in-

termediate Louisiana appellant courts’ and in federal courts in

? The district court reasoned as follows, 483 F.Supp. at 837:

The final subject of dispute consists of Hugh’s related objec-

tions to the choice of Texas law to govern the agreement, and

to the waiver of future inheritance rights. Hugh, properly

asserts that Louisiana law looks with disfavor upon attempts to

waive future inheritance rights. However, as none of the parties

reside in Louisiana, that substantive policy is of no conse-

quence. Article 10 of the Civil Code requires application of the

law of the place where the contract is to have effect, which, in

the case of the persons being released by Hugh, is Texas. Hugh

does not claim that the waiver is void under the law of Texas.

Despite this analysis, the district court relied on Louisiana law

elsewhere in its opinion. 483 F. Supp. at 834, 835, 837. Similarly,

both parties to this appeal rely inconsistently un both Louisiana and

Texas law.

* E.g., Universal C.1.T. Credit Corp. v. Hulett, 151 So.2d 705

(La.App., 3rd Cir. 1963) (Judge Tate); Doty v. Central Mutual In-

surance Co., 186 So.2d 328 (La.App., 3rd Cir. 1966) (concurring

9a

this circuit‘ which applied a more modern approach to choice

of law rules — looking to the ‘‘center of gravity,’’ or to the

state with the ‘‘most significant contacts’’ — rather than ap-

plying the literal wording of the Louisiana Code. See general-

ly Restatement (Second) of Conflict of Laws §§6, 188 (1971).

But this approach was rejected by the Louisiana Supreme

Court in Johnson v. St Paul Mercury Insurance Co., 236

So.2d 216 (La. 1970). We subsequently recognized Louisiana’s

adherence to the strict wording of Article 10 in Lester v. Aet-

na Life Insurance Co., 433 F.2d 884 (Sth Cir.), cert. denied,

402 U.S. 909, 91 S.Ct. 1382, 28 L.Ed.2d 650 (1971), but

upheld the district court’s application of the modern approach

by carving out an exception to the rule of Klaxon. We held

that we were not bound by the choice of law rule of the

forum state where only a ‘‘false conflict’”’ exists, that is,

where only one state has any legitimate interest in the case.

Our holding was not an attempt to overrule the Louisiana

Supreme Court’s strict interpretation of Article 10, or to

eviscerate Klaxon; rather, we sought to except the general

Klaxon rule only in those extreme cases where ‘‘ ‘one of two

states related to a case has a legitimate interest in the applica-

tion of its law and the other has none.’ ’’ 433 F.2d at 890.

‘ur exception was, however, rejected by the Supreme Court

in Day and Zimmerman, Inc. v. Challoner, 423 U.S. 3, 96

S.Ct. 167, 46 L.Ed.2d 3, overruling Challoner v. Day and

opinion of Judge Tate); Blanchard v. Blanchard, 180 So.2d 564

(La.App., 3rd Cir. 1965) (concurring opinion of Judge Tate). In

these cases Judge Tate found authority for the modern approach in

the second sentence of La.Civ.Code Art. 10, which provides:

But the effect of acts passed in one country to have effect in

another country, is regulated by the laws of the country where

such acts are to have effect.

* E.g., Franklin v. Texas International Petroleum Corp., 324

F.Supp. 808 (W.D.La.1971).

10a

Zimmerman, Inc., 512 F.2d 77 (Sth Cir. 1975), in a short per

curiam opinion which concluded:

By parity of reasoning, the conflict—of—laws rules to

be applied by a federal court in Texas must conform to

those prevailing in the Texas state courts. A federal court

in a diversity case is not free to engraft onto those state

rules exceptions or modifications which may commend

themselves to the federal court, but have not commended

themselves to the State in which the federal court sits.

423 U.S. at 4, 96 S.Ct. 15 168. See generally C. Wright, Law

of Federal Courts §57, at 264-65(3rd ed. 1976).

Following Challoner, we are bound by the interpretation

of Article 10 adopted by the Louisiana courts. Subsequent to

Challoner, however, the Louisiana Supreme Court overruled

Johnson in favor of more modern approach to conflicts of

law. Jagers v. Royal Indemnity Co., 276 So.2d 309 (La.

1973). Unfortunately, Jagers is far from clear. Jagers ap-

parently created an exception to the strict Louisiana choice of

law rules by holding that only a ‘‘false conflict’’ existed in the

case; that is, the Louisiana Supreme Court adopted the

reasoning of this court in Lester and Challoner and held that

conflicts of law principles did not apply in cases of ‘‘false’’

conflicts.’ But Jagers can be read to go even farther than this.

After holding that the state choice of law rule did not apply

in cases of false conflict, the court cryptically stated:

That some modern methods for determining whether to

apply the law of the forum are faulty in some respects

* In Challoner, the Supreme Court rejected the ‘‘false conflicts’’

doctrine as an exception to the rule of K/axon. But it left the door

open for state courts to adopt the doctrine as an exception to their

own local choice of law statutes. Challoner v. Day and Zimmerman,

Inc., 423 U.S. 3, 5, 96 S.Ct. 167, 168, 46 L.Ed.2d 3 (1975)

(Blackmun, J., concurring).

lla

should not deter a court in the application of the law of

the forum to its citizens, when not otherwise prohibited.

A footnote to this statement is as follows:

For choice—of—law principles, see Restatement, Second,

Conflict of Laws, §6 (1969):

*“(1) A court, subject to constitutional restrictions, will

follow a statutory directive of its own state on choice of

law.

**(2) When there is no such directive, the factors relevant

to the choice of the applicable rule of law include

*‘(a) The needs of the interstate and international

systems,

**(b) the relevant policies of the forum,

**(c) the relevant policies of other interested states

and the relative interests of those states in the deter-

mination of the particular issue,

**(d) the protection of justified expectations,

**(e) the basic policies underlying the particular field

of law,

“*(f) certainty, predictability and uniformity of result,

and

**(g) ease in the determination and application of the

law to be applied.”’

276 So.2d at 312.

Shortly after Jagers, this court was faced with a Loui-

siana choice of law question in Brinkley & West, Inc. v.

Foremost Insurance Co., 499 F.2d 928 (1974). We concluded

that the Louisiana Supreme Court’s opinion in Jagers in ef-

fect adopts the analysis of the Restatement as the law of

Louisiana. Still the Restatement arguably allows for the strict

interpretation of Article 10 in cases involving a real (as oppos-

ed to ‘‘false’’) conflict of law, since the interest analysis is to

be used only where there is no statutory directive (i.e., Article

10) to the contrary. But after finding that the conflict in

12a

Brinkley & West, Inc. was a real one, we went on to apply the

interest analysis set forth in the second paragraph of the

Restatement provision, thereby implicitly finding that Article

10 is not to be strictly construed even in cases of real con-

flicts. Since Brinkley & West, Inc. was decided, the Jagers

opinion has been interpreted by at least two intermediate ap-

pellate courts in Louisiana. Brannon v. Babin 366 So.2d 955

(La.App., Ist Cir. 1978); Sutton v. Langley, 330 So.2d 321

(La.App., 2d Cir.), writ denied, 332 So.2d 805, 820, and 333

So.2d 321 (1976). In both cases the court held that the

modern ‘‘interest analysis’’ is the - »rrect choice of law rule in

Louisiana — whether the conflict is ‘‘real’’ or ‘‘false.’’ We

can therefore reaffirm our analysis in Brinkley & West, Inc.,

supra, and conclude (1) that the current approach to the

choice of law in Louisiana is that embodied in the Restate-

ment, supra, and (2) that under that approach the interest

analysis of the second paragraph of the Restatement is to be

applied in all cases, regardless of the literal reach of Article

10.

The district court found that Texas has a greater interest

in this settlement than does Louisiana and that the law of

Texas accordingly must govern the interpretation and validity

of the settlement agreement. As virtually all of the parties to

the settlement agreement are residents of Texas (only Mrs.

Lee is a resident of Louisiana), and the bulk of the property

at issue is located in Texas, the district court’s conclusion is

clearly correct. We note that the parties do not challenge that

holding.‘

* Louisiana will honor a stipulation of the parties regarding the

choice of law. La.Civ.Code Art. 11; Fine v. Property Damage Ap-

praisers, Inc., 393 F.Supp. 1304 (E.D.La.1975). The master settle-

ment agreement does provide that Texas law shall govern the agree-

ment, and the district court adds that such was the implicit

understanding of the original agreement (since the parties must have

intended an enforceable contract, and under Louisiana law, accor-

ding to Hugh Hunt’s argument, there is some doubt about this con-

13a

Il. THE JANUARY 16 AGREEMENT

The judge began the January 16 meeting in his chambers

by explaining the purposes of the conference as follows:

Now, as I understand it and for the purpose of the

record, there have been discussions concerning a

negotiated settlement of this lawsuit, that the parties are

in agreement and for the purpose of placing the terms of

the agreement in writing, the court has made use of and

is now making use of the instantaneous court reporters

who will transcribe now the terms of the settlement,

which will be then typed and after being typed will be

signed by all parties to the lawsuit and other members of

both families will have a place to sign their names in-

dicating their full agreement with the terms.

Record at 3456. The judge then requested counsel for the par-

ties to list the provisions of the settlement agreement. Before

the parties listed these terms, the judge stated again:

Well, I am providing these offices for the purpose of the

parities and when you all have reached an agreement and

are ready to execute it, then I want to supervise it.

Record at 3456. The attorney who stated the agreement began

by saying the following:

Following the negotiations between all parties that are

present here and that the parties here represent that they

are authorized to speak on behalf of the other members

of their family or respective families and in order to bring

this entire litigation to a conclusion and in addition to

this litigation any other claims of any nature or kind

which any member of the Hunt family may have one

against the other of any nature or kind, the following

agreement has been reached.

tract’s validity). 483 F.Supp. at 837. The choice of law is not men-

tioned in the January 16 conference, however, and there is no in-

dication that anyone was aware of Hugh Hunt’s arguments under

Louisiana law at that time. Since the applicable choice of law rule

comes to the same result, we need not reach this question.

4a

Record at 3458. During the course of the discussion, Hugh

Hunt expressed some doubt as to his ability to legally sign

away his children’s rights. And, when attorneys for the Hunt

Estate said that each branch of the Hunt family would release

all of its rights of inheritance from other branches of the

family, Hugh Hunt disagreed that this had been the

understanding reached prior to the conference. The court ap-

pears to have agreed with counsel for the Hunt Estate. The

following colloquy then took place:

THE COURT: In other words, all of the parties who

have discussed this matter up to this point have

understood that this was a final settlement.

MR. HUGH LEE HUNT: Your honor, I want to make a

statement. I am here because my mother is taking four

pills a day for her heart. I have been advised by my at-

torneys that if she dies, her rights die and I will sign

whatever papers you want, and I would like to leave the

chambers, please.

THE COURT: You may, sir.

(Thereupon Mr. Hugh Lee Hunt left the chambers.)

Record at 3468. At this point the rest of the parties completed

their statement of the terms of the agreement. At the conclu-

sion of the conference, the judge had the transcript typed up.

At the end of the transcript is a place for the signatures of all

the parties; Hugh Hunt’s signature appears there, along with

that of other parties to the agreement.

Ill. THE “MEETING OF THE MINDS” IN THE

JANUARY 16 AGREEMENT

Hugh Hunt contends that there was no ‘‘meeting of the

minds’’ in the January 16 conference, and that the transcript

of that meeting therefore cannot represent a final binding

contract under applicable state law. Most of this argument

consists of challenges to factual findings of the district court.

These findings include: (1) that Hugh Hunt did intend to bind

himself by his signature to the January 16 transcript; and (2)

15a

that he understood the January 16 agreement to be a complete

statement of the terms of the settlement. 483 F.Supp. at 835.

Insofar as material facts are disputed in the course of a pro-

ceeding to enforce a settlement agreement, the district court

should hold a hearing to obtain evidence on the factual mat-

ters in dispute Massachusetts Casualty Insurance Co. v. For-

man, 469 F.2d 259 (Sth Cir. 1972). The trial judge did hold a

full hearing on this petition and heard testimoy from Hugh

Hunt and from his mother, Mrs. Lee. Factual findings pur-

suant to such a hearing must be accepted unless they are

“clearly erroneous’”’ within the meaning of Fed.R.Civ.P.

52(a). Pearson v. Ecological Science Corp., 522 F.2d 171 (Sth

Cir. 1975), cert. denied sub nom. Skydell v. Ecological

Science Corp., 425 U.S. 912, 96 S.Ct. 1508, 47 L.Ed.2d 762

(1976). On the basis of the record, and in particular the

transcript of the January 16 meeting, we cannot say that these

findings were clearly erroneous.

Hugh Hunt also argues that it was his understanding that

counsel for the Hunt Estate would require the signature of his

wife and of his descendants, while in fact the Estate did not

insist on these signatures. The district court incorrectly relied

on Louisiana law in holding that this misunderstanding did

not negate the ‘“‘meeting of the minds’’ in the January 16

agreement. 483 F.Supp. at 834-35. But the result is no dif-

ferent under Texas law. Whether these signatures would be re-

quired is not relevant to Hugh Hunt’s obligations. They were

purely for the benefit of the Hunt Estate, as they served only

to waive rights against the Estate and those claiming under it.

The Estate therefore has the right to waive the requirement

without forfeiting any other right under the agreement; under

Texas law, a party to a contract may waive the performance

of any contractual provision that is to his benefit. E.g., Gulf

Production Co. v. Continental Oil Co., 164 S.W.2d 448 (Tex.

1942). Nevertheless, Hugh Hunt maintains that he believed

that he would not be bound until his wife and descendants

signed, and that consequently he signed the transcript under a

mistake of law. In the first place, mistake generally does not

l6a

excuse contractual obligations unless it is mutual (or is induc-

ed by the other party). E.g., Anderson Brothers Corp. v.

O’Meara, 306 F.2d 672 (Sth Cir. 1962). There is no suggestion

in the record that any other party to the agreement was under

the same misimpression of Texas law, or that any party induc-

ed Hugh Hunt’s misunderstanding. In the second place, a

pure mistake of law generally cannot excuse contractual

obligations. E.g., Hall v. Hays, 441 S.W.2d 275

(Tex.Civ.App.-El Paso 1969, no writ history); Ussery v.

Hollebeke, 391 S.W.2d 497 (Tex.Civ.App.-El Paso 1965, writ

ref. n. r. ¢.); Harris v. Sanderson, 178 S.W.2d 315

(Tex.Civ.App.-Eastland 1944, writ ref. w. o. m.). Therefore,

the fact that Hugh Hunt may have mistakenly understood the

applicable law to exempt him from the binding force of his

signature cannot excuse him from the settlement agreement.

IV. DURESS, UNDUE INFLUENCE, AND FAILURE OF

CONSIDERATION

Hugh Hunt urges several affirmative defenses to any con-

tract which may have been formed in the January 16 con-

ference. These defenses center around the emotional strain

and pressures of the settlement negotiations:

The Court should consider the posture in which Hugh

Hunt found himself at that tense and compelling moment

in this already emotionally charged litigation. He unhap-

pily discovered himself inexorably drawn into the vortex

of these settlement negotiations, without benefit of per-

sonal legal counsel. He thusly became torn between his

own innermost feelings of dismay at what seemed to be

transpiring and the unclear effects thereof on his personal

welfare, as opposed to what legal counsel for his mother

were strongly pressing upon him as being in her best in-

terests.

Appellant’s Brief at 25. Hugh Hunt may indeed have been

under great pressure at this time, and the record shows that

the emotional strain caused him to leave the meeting before it

was completed. But these facts do not establish either duress

17a

or undue influence under Texas law. One state court has

defined duress as follows:

[Ojur courts of Texas have consistently followed the rule,

as a matter of law, that (1) there can be no duress unless

there is a threat to do some act which the party threaten-

ing has no legal right to do; (2) there must be some illegal

exaction or some fraud or deception; (3) the restraint

must be imminent and such as to destroy free agency

without present means of protection.

Tower Contracting Co., Inc., of Texas v. Bruden Brothers,

Inc., 482 S.W.2d 330, 335 (Tex.Civ.App.—Dallas 1972, writ

ref. n. r. ¢.). See also Mitchell v. C.C. Sanitation Co., 430

S.W.2d 933 (Tex.Civ.App.—Houston [14th Dist.] 1968, writ

ref. n. r. e.); Sanders v. Republic National Bank of Dallas,

389 S.W.2d 551 (Tex.Civ.App.—Tyler 1965, no writ history).

In order to prove undue influence, one must demonstrate that

“‘persuasion, entreaty, importunity, argument, intercession,

and solicitation’ were so strong as to ‘‘subvert and overthrow

the will of the person to whom they are directed.’’ DeGrassi

v. DeGrassi, 533 S.W.2d 81, 85 (Tex.Civ.App.—Amarillo

1976, writ ref. n. r. e.). See Curry v. Curry, 270 S.W.2d 208

(Tex.1954). Duress and undue influence are difficult defenses

to establish. Certainly they are not suggested by the facts of

this case; emotional strain and negotiation pressures are not

by themselves enough to overcome the will of the party to a

contract, and there is no evidence that they resulted from

threats, illegal exaction, fraud or deception.

Hugh Hunt makes the related argument that he received

nothing in return for his signature on the transcript of the

January 16 meeting. It is true that the agreement guaranteed

him none of the final settlement amount, which was to be

distributed in accordance with his mother’s directions. But a

party need not receive the benefit of a contract in order to be

bound by it; it is enough that the party seeking to hold

another to the contract suffer a legal detriment. So long as

consideration is sufficient to support the contract, which party

actually receives the consideration is irrelevant. E.g., Loomis

v. Skillerns—Loomis Plaza, Inc., 593 S.W.2d 409

(Tex.Civ.App.—Dallas 1980, no writ history); Mercantile Na-

tional Bank at Dallas v. Hudgens, 412 S.W.2d 364

(Tex.Civ.App.—Ft. Worth 1967, writ ref. n. r. e.); Minton v.

Riverside State Bank, 399 S.W.2d 196 (Tex.Civ.App.—Ft.

Worth 1966, no writ history).

Vv. THE MASTER SETTLEMENT AGREEMENT

Hugh Hunt argues that the master settlement agreement

which the district court ordered him to execute is not a

reasonable statement of the terms of the January 16 agree-

ment, The most important area of dispute centers around the

scope of the releases contained in the final document. In

brief, the master settlement agreement provides for the follow-

ing releases:

1. Mrs. Lee and her descendants release the other par-

ties from all claims arising from the relationship between

Mrs. Lee and H. L. Hunt, including the birth of children

from the relationship;

2. All parties accept as valid the duly probated will of

H. L. Hunt;

3. All parties waive all forced heirship rights;

4. All parties agree not to prosecute or aid in the pros-

ecution of suits arising from the relationship between

Mrs. Lee and H. L. Hunt, including suits to determine

status;

5. Mrs. Lee and her descendants assign to the other

parties, in shares set forth in the agreement, their rights

of inheritance from those parties, including all rights

under state intestacy statutes and all testate claims that

are not specifically established (or reestablished) after the

date of the agreement; and all other parties assign their

like rights to inheritances from Mrs. Lee and her de-

scendants, to Mrs. Lee and her descendants in specified

shares;

19a

6. All parties agree to dismiss all ongoing litigation

among themselves, with the exception of one certain suit

brought by Hugh Hunt in Georgia; and

7. Mrs. Lee and her descendants release any and all

claims which they have against the other parties which do

not arise out of the relationship between Mrs. Lee and H.

L. Hunt but are already in existence at the date of the a-

greement; and the other parties likewise release Mrs. Lee

and her descendants.

See Record at 3255-270. Hugh Hunt argues that these provi-

sions depart from the intent of the earlier agreement by

broadening the scope of the proposed releases. First, as Hugh

Hunt describes the January 16 agreement it contemplated a

release of only those claims which arose out of the alleged

putative marriage between Mrs. Lee and H. L. Hunt, and did

not call for a release of either present or future claims which

are independent of that relationship. (Cf. paragraph 7 above.)

Second, he maintains that the January 16 agreement did not

contemplate the release of inheritance rights other than those

derived from the relationship between Mrs. Lee and H. L.

Hunt. Although it is not clear precisely what rights he is refer-

ring to, they would appear to be testate rights, i. e., claims

which Mrs. Lee and her descendants may have by virtue of

wills written by other parties to the settlement agreement. (C/.

paragraph 5 above.) And third, Hugh Hunt maintains that the

January 16 agreement did not call for a relinquishment by

him of his children’s rights. (Cf. paragraphs 1, 2 and 5

above.)

The transcript shows that the agreement was not clear in

all respects on January 16, and there is ample room for argu-

ment about the intended scope of the releases.’ With respect

’ The attorney for the Hunt Estate stated the agreement as

follows:

MR. COOK (counsel for the Estate): Item two. That Mrs.

Lee and all of her descendants would sign a release releasing all

parties from any claim, including future inheritance rights in

20a

to the agreement’s release of claims unrelated to the relation-

ship between Mrs. Lee and H. L. Hunt, there is language in

the transcript describing the agreement as ‘‘a final settlement’

the Estate of any members of the Hunt family, which release

will contain appropriate indemnity provisions.

MR. FRITCHIE (counsel for Mrs. Lee): You are now talking

— excuse me — I have to ask you at this point when you say

ha rights of future inheritance’? he means by operation of

aw

THE COURT: By operation of law.

MR. COOK: That is right.

MR. FRITCHIE: When you say, ‘“‘Mrs. Lee and all of her

descendants,’’ you are talking about Mrs. Lee and those of her

descendants who are of the age of majority?

MR. COOK: And their respective spouses, and I think at this

time it might be well to list all of the parties to be included.

Record at 1263. Later in the meeting Hugh Hunt was asked

whether his children would sign the agreement. The following collo-

quy then took place:

MR. HUGH LEE HUNT: You see, we never talked about

inheritance rights, God forbid that something should happen

that the entire first family should be wiped out, let’s say

something like that did happen.

MR. HIRSCHKOP (counsel for Herbert and Lamar Hunt):

Give you all inheritance rights?

MR. HUGH LEE HUNT: We would have inheritance rights I

understand by Texas law.

MR. COOK: This is what is being settled at this time, this is

being released.

MR. HUGH LEE HUNT: We never agreed to this, there was

no discussion on this.

MR. HUNTER: Yes, there was.

MR. HUGH LEE HUNT: There was discussion on the fact

that we would not do anything on public statements and

everything else like that.

MR. FRITCHIE: That you would give up inheritance rights.

MR. HUGH LEE HUNT: Anything having to do with this

suit, with the issue of this suit we would not be involved in,

but if you remember there was some discussion about —

MR. HUNTER: ge ne What inheritance rights is

anybody conceivably talking about other than possibly col-

2la

and a release ‘‘from any claim.’’ But the court also describes

the agreement as only a settlement ‘‘as to this lawsuit and as

to any possible inheritance rights.’’ There is an even more

direct conflict on the issue of inheritance rights. When asked

about them at the outset, counsel for the Hunt Estate agreed

with counsel for Mrs. Lee that ‘‘all rights of future in-

heritance’’ meant only such rights as exist ‘‘by operation of

law,’’ which would appear to exclude testate rights. But at a

later point in the transcript the court refers to ‘‘any possible

inheritance rights should they occur,’’ and appears to disagree

with Hugh Hunt’s understanding that the parties had intended

to limit the releases to rights related to the subject matter of

the lawsuit. As to releases which affect the rights of the signa-

tories’ descendants, Hugh Hunt expressed some doubt as to

his ability to ‘‘legally sign away any of my children’s rights.”’

These doubts were never specifically addressed by counsel for

the Hunt Estate, and the master settlement agreement does in

effect waive rights of the signer’s descendants.

lateral heirs inheriting from someone else if they did not leave

a will or something?

THE COURT: That’s the question and that is the only thing

that is being discussed and it was discussed here in chambers

that the settlement was as to this lawsuit and as to any possible

inheritance rights should they occur, and I understand that to

be the basis of the settlement also.

MR. HUNTER: I understand that, too, Judge, there is no

question.

THE COURT: In other words, all of the parties who have

discussed this matter up to this point have understood that this

was a final settlement.

Record at 1265-1267. It was at this point that Hugh Hunt became

upset and left the judge’s chambers. No further discussion involved

the releases to be included in the final document, aside from an

agreement among the parties that all lawsuits would be dismissed

except for Hugh Hunt’s existing suit in Georgia.

* The master settlement agreement purports to bind the heirs,

successors, assigns and legal representatives of all of the signatories.

Under Texas law, the waiver of future interests and expectancies

22a

Under Texas Law, the interpretation of an unambiguous

contract — as well as the determination of whether or not a

contract is ambiguous — is a legal question. But once it is

determined that a contract is ambiguous, the determination of

the actual intent of the parties becomes a factual question.

Trinity Universal Insurance Co. v. Ponsford Brothers, 423

S.W.2d 571 (Tex. 1968). See Pletz v. Christian Herald

Association, 486 F.2d 94 (Sth Cir. 1973); Hennigan v.

Chargers Football Co., 431 F.2d 308 (Sth Cir. 1970); Roy L.

Jones, Inc. v. Home Transportation Co., 422 F.2d 179 (Sth

Cir. 1970). Hugh Hunt’s interpretation of the intent of the

January 16 agreement is arguable on the basis of vague and

conflicting statements in the transcript. But we find that the

transcript agreement is ambiguous with respect to these issues,

and therefore we must defer to the trial court’s resolution of

the factual issue of intent unless his findings are ‘‘clearly er-

roneous.’’ Fed.R. Civ.P. 52(a). The trial court considered

Hugh Hunt’s arguments on the scope of the releases con-

templated by the January 16 agreement and concluded that

the intent of the January 16 agreement is fairly embodied in

the master settlement agreement.’ 483 F.Supp. at 834-35, In

may contractually bind the descendants and other successors of the

actual signatory to the agreement. E.g., Trevion v. Turcotte, 564

S.W.2d 682 (Tex. 1978); McConnell v. Corgey, 262 S.W.2d 944

(Tex. 1953). :

* These arguments are not all discussed in the opinion of the

district court. That opinion does not explicitly deal with Hugh

Hunt’s contentions that (1) the January 16 agreement did not even

call for a release of present claims that were unrelated to the rela-

tionship between Mrs. Lee and H.L. Hunt, and (2) the January 16

agreement did not contemplate his release of his children’s rights.

We note that Hugh Hunt's argument to the district court did not

clearly delineate the different aspects of his disagreement with the

release provisions of the master settlement agreement. Memorandum

of Hugh L. Hunt in Opposition to Defendant’s Motion to Enforce

the Settlement Agreement, Record at 2825. In the context of the

arguments made to the district court, and of that court’s order and

opinion, it is clear that the district court nevertheless rejected these

contentions as a matter of fact.

23a

this case the trial court’s findings are due particular deference,

for the court presided over the trial and was present at the

formation and execution of the agreement it was called upon

to interpret. On the basis of the transcript of the January 16

meeting, we cannot say that the district court’s findings were

clearly erroneous.

In addition to the scope of the releases, Hugh Hunt

points to several other discrepancies between the January 16

agreement and the master settlement agreement. First, he

notes that the requirement for the signatures of Hugh Hunt’s

descendants was dropped in the final document. But as we

have already stated, the Hunt Estate had preserved a right to

do this. Second, he argues that the actual distribution of the

settlement funds is not set out in the January 16 agreement.

This distribution was left open so that Mrs. Lee could thereaf-

ter decide precisely how the money should be distributed for

the most favorable tax treatment. 483 F.Supp. at 836. Hugh

Hunt made no objection to this arrangement and we do not

believe that the deferral of this matter is relevant to his

obligations. Third, Hugh Hunt maintains that the provision in

the master settlement agreement stipulating that Texas law

shall govern the interpretation of the agreement was not

discussed or contemplated on January 16. It is true that the

transcript of the January 16 meeting includes no reference to

the parties’ contractual choice of law; but since Texas law

would govern in the absence of an agreement, the provision

has no effect on any of the parties. Finally, Hugh Hunt

argues that the master settlement agreement does not honor

the Hunt Estate’s purported agreement to obtain new trustees

for certain trusts previously established for the benefit of Mrs.

Lee’s children and grandchildren. But the representation of

counsel for the Hunt Estate in the January 16 meeting was

only that:

It is understood that Mrs. Lee and her children may want

to arrange for the appointment of a different advisory

committee or a different trustee. Ray Lee Hunt is

agreeable to this being done provided it can be legally

24a

done. He will cooperate in the every way to provide for a

change in either the advisory committee or the trustee.

Record at 1282. As the district court noted, such a change

was not possible under applicable state law. 483 F.Supp. at

836. We conclude that the district court correctly found that

the master settlement agreement is a reasonable embodiment

of the intentions of the parties in the January 16 agreement,

and that Hugh Hunt may properly be required to execute it.

Vi. THE PURPORTED ILLEGALITY OF THE CON-

TRACT

Finally, Hugh Hunt argues that certain provisions of the

master settlement agreement are contra bones mores under

Louisiana law. In particular, he points to Louisiana cases

which prohibit the renunciation of inheritance rights which

depend on the death of some living person, and to a Loui-

siana constitutional provision which prohibits discrimination

on the basis of illegitimacy in matters of property or in-

heritance. We doubt that these policies, even if applicable,

would void the entire contract. So long as the consideration is

legal and che provisions are separable, those contractual pro-

visions which are not illegal may still be enforced. Williams v.

Williams, 569 S.W.2d 867 (Tex.1978). But it is not necessary

to reach this question or to determine the precise relevance of

the asserted Louisiana policies to the master settlement agree-

ment. As we determined supra, it is the law of Texas that

governs this contract. And, although the district court made

the same determination, Hugh Hunt has at no point contend-

ed that any provision of the agreement is contrary to Texas

Law.

We conclude that the January 16 settlement agreement

embodied in the transcript of the conference held that day in

the judge’s chambers is an enforceable contract of settlement

under Texas law and is binding on Hugh Hunt. We also con-

clude that the master settlement agreement reasonable

represents the intent of the January 16 agreement, and that

Hugh Hunt may be bound by its terms. The judgment of the

district court is affirmed in all respects.

AFFIRMED.

25a

APPENDIX D

UNITED STATES OF AMERICA

DISTRICT COURT OF THE UNITED STATES

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

Crvm AcTION No. 76-0628

Mrs. FrRaNniA TYE Lee, Plaintiff,

Vv.

Ray Lee Hunt, Executor of the Estate of H.L. Hunt,

Defendant.

FINAL JUDGMENT

Filed December 27, 1979

This cause came on before the Court upon the Petition to

Enforce Settlement Agreement (the ‘‘Petition’’) filed by Ray

Lee Hunt, Executor of the Estate of H.L. Hunt (the

“‘Estate’’). The Petition requested, among other things, that

the Court enforce against Hugh Lee Hunt, also known as

Hugh S. Hunt (‘‘Hugh’’), the settlement agreement (the ‘‘Set-

tlement’’) entered into on January 16, 1978, by the parties in

the main action and certain other persons interested therein

(including Hugh). Such request for enforcement asked, among

other things, that the Court order Hugh to execute a ‘‘Master

Settlement Agreement’’ and seventeen ‘‘Assignment of Expec-

tancy Agreements’”’ (collectively referred to herein as the ‘‘Set-

tlement Documents’’) deposited with the Court pursuant to a

‘Deposit Agreement’”’ (herein so called) on September 26,

1978, and order Hugh to dismiss a certain lawsuit as required

of him by the Settlement. A plenary hearing on the Estate’s

Petition was held on December 7, 1978, at which the Court

received evidence concerning the issues raised in the Petition.

26a

Having briefs of counsel, and all of the evidence, the

pleadings, the arguments and briefs of counsel, and all other

matters properly before the Court, and in conformity with

and pursuant to the Memorandum Ruling entered by the

Court on December 19, 1979, the Court is of the opinion that

the Estate is entitled to the relief which it seeks in its Petition.

Accordingly, it is DECLARED, ADJUDGED, and DECREED

that the Settlement entered into on January 16, 1978 is a

legally enforceable contract which is in all regards binding on

each of the parties to it (consisting of Frania Tye Lee, the

Estate of Howard F. Lee, Mark Steven Lee, Haroldina Hunt

Lee Franch, Ronald Andrew Cartledge, Hugh Lee Hunt,

Margaret Hunt Hill, Haroldson L. Hunt, Jr., Caroline Hunt

Schoellkopf, Nelson Bunker Hunt, William Herbert Hunt,

Lamar Hunt, Mrs. H.L. (Ruth Ray) Hunt, Ray Lee Hunt,

Ruth June Hunt, Helen Hunt Kreiling, Swanee Hunt Meeks,

and the Estate) and that by entering into the Settlement, each

of the parties to it (including Hugh) were and, as hereby

declared, are legally bound by and required to abide by the

terms and conditions specified in the Settlement Documents,

which documents are captioned and referenced as follows (the

terms of all of which documents are incorporated into this

Judgment by reference):

Caption Reference

Master Settlement Agreement Attached as Exhibit A to

the Deposit Agreement, an

original copy of which was

received as part of Joint

Exhibit 9 filed in the record

of the December 7, 1978

Hearing before the Court.

27a

A series of seventeen Original copies of which

Assignment of Expectancy were deposited with the

Agreements (numbered 1 Court pursuant to the

through 17 in the top Deposit Agreement on

righthand corner) September 26, 1978, and

copies of which were

received as part of Joint

Exhibit 9 filed in the record

of the December 7, 1978

Hearing before the Court.

As provided in the Deposit Agreement, the Clerk of this

Court shall retain one original copy of each of the Settlement

Documents as part of the permanent record of this pro-

ceeding, which copies shall be marked by the Clerk for iden-

tification with this Judgment.

It is OrpERED that Hugh fully execute the Settlement

Documents previously tendered to the Clerk of this Court by

the other parties to the Settlement on or before 5:00 P.M.,

Thursday, December 27, 1979, failing which the Clerk of this

Court shall on Friday, December 28, 1979 execute the Settle-

ment Documents by signing Hugh’s name in the appropriate

spaces, which execution by the Clerk shall, pursuant to Rule

70 of the Federal Rules of Civil Procedure, have like effect as

if performed by Hugh.

It is further ORDERED that Hugh shall, within thirty days

from the date of entry of this Judgment, cause that certain

action styled ‘‘Hue R. Lee, et al v. State of Louisiana, et al,”’

being Cause Number 181,791 — Division ‘‘I,’’ pending in the

19th Judicial District Court, Parish of East Baton Rouge,

State of Louisiana (the ‘‘State Court Action’’) to be dismissed

by filing in the State Court Action a motion to dismiss the

State Court Action with prejudice, failing which the Clerk of

this Court shall, immediately upon the expiration of such

thirty-day period, execute such motion to dismiss by signing

Hugh’s name to it and file such motion in the State Court Ac-

tion, which execution and filing by the Clerk shall, pursuant

28a

to Rule 70 of the Federal Rules of Civil Procedure, have like

effect as if performed by Hugh.

It is further OrDERED that the Clerk of this Court, after

(1) execution by Hugh, or for him by the Clerk, of the Settle-

ment Documents, as ordered herein, and (2) the filing of the

executed motion to dismiss in the State Court Action by

Hugh, or for him by the Clerk, as ordered herein, distribute

the Settlement Documents previously deposited with him at

the time specified in and in accordance with the ‘‘Deposit

Agreemert”’ attached to the Petition.

It is further ADsupGED that the dismissal with prejudice

of the action of Frania Tye Lee against Ray Lee Hunt

heretofore ordered by Judgment of this Court dated January

23, 1978 be and is hereby reconfirmed in all respects.

It is further OrnpERED that the entire record in this pro-

ceeding be placed under seal and preserved under lock, not to

be opened except by order of this or a superior court. The

docket sheet, the official minutes and the text of this Judg-

ment (excluding the Master Settlement Agreement and Assign-

ment of Expectancy Agreements referenced herein, which

shall be placed under seal and lock as provided in the first

sentence of this paragraph) shall be exempt from the order to

seal the record.

DaTep at Shreveport, Louisiana this 27th day of

December, 1979.

/s/ Tom STaGcG

Tom Stagg

United States District Judge

29a

APPENDIX E

UNITED STATES DISTRICT COURT,

W. D. LOUISIANA,

SHREVEPORT DIVISION.

Civ. A. No. 76-0628

FRANIA TYE LEE

Vv.

Ray Lee Hunt, Executor of the

Estate of H. L. Hunt.

On Motion to Enforce Settlement

Agreement Dec. 19, 1979.

Stace, District Judge.

MEMORANDUM RULING

This action comes again before the court, this time on the

motion of defendant to enforce the settlement agreement

against Hugh S. Hunt (Hugh).' Although not formerly a par-

ty to this litigation, Hugh, the plaintiff’s only living son, has

from its inception been deeply involved in the lawsuit, if not

the moving force behind it. He has now been joined as a par-

ty to the motion and is the only person involved in the settle-

ment negotiations who has not executed the final settlement

agreement.

' Also referred to in the record as ‘‘Hue R. Lee,’”’ ‘‘Hue R.

Hunt,”’ and ‘‘Hugh Lee Hunt.”’

30a

The allegations of plaintiff's Complaint, more fully

discussed elsewhere,’ can be summarized as follows. Mrs. Lee

met ‘‘Franklin’’ Hunt in Tampa, Florida and they were mar-

ried in that city on November 11, 1925. Shortly thereafter,

they moved to Shreveport, Louisiana where two children were

born to the marriage. In 1930, the family moved to Dallas,

Texas, where a third child was born. In May of 1934, Mrs.

Lee learned that ‘‘Franklin’’ Hunt was actually H. L. Hunt

and that he had been married to Lyda Bunker Hunt for some

years prior to 1925. A short time later Mrs. Lee moved to

New York where a fourth child was born.

On January 24, 1942, after Mrs. Lee had threatened suit,

Hunt paid her a substantial sum in settlement of her claims

against him, though without admitting the validity of her

claims. It is further alleged that Mr. Hunt promised to

acknowledge in his will their purported marriage and the

legitimacy of their children, and to bequeath to her and their

children properties in settlement of her interest in the com-

munity. When Hunt’s death revealed that he had not kept his

promise, Mrs. Lee filed this action seeking to be recognized as

his putative wife and declared owner of one-half of the com-

munity property acquired during the relationship. Defendant

staunchly denies most of these allegations.

Following protracted pretrial proceedings, the case was

tried to a jury beginning on January 9, 1978. On the morning

of the sixth day of trial, after plaintiff had rested her case,

the parties announced that a compromise had been achieved

and an agreement was entered into by the parties and the

other members of the Hunt families (‘‘January 16 agree-

ment’). The agreement was dictated by the parties in

? See Lee v. Hunt, 431 F.Supp. 371 (W.D.La. 1977); Lee v.

Hunt, 415 F.Supp. 245 (M.D.La. 1976). See also this Court’s

Memorandum Rulings of December 14, 1977, January 10, 1978,

January 11, 1978, January 12, 1978, and January 13, 1978.

3la

Chambers and signed in the presence of the Court by all con-

cerned (or by their agents) including Hugh. Hugh was given a

copy; he read it in presence of the Court and acknowledged to

the court that he understood its terms. It was clearly

understood that a more formal document would be executed

as soon as it could be prepared. The jury was discharged and

a judgment of dismissal was entered accordingly.

Hugh now claims that he did not understand the January

16 agreement to be binding and that, in any event, the more

formal document executed by all of the other parties to the

earlier agreement does not accurately reflect the dictated

agreement. The Court disagrees with Hugh Hunt on both

counts and, for reasons set out below he is obligated to ex-

ecute the Master Settlement Agreement.

Befcre considering the merits of these contentions,

however, there are several procedural objections raised by

Hugh that must be addressed.

Following his joinder to this action, Hugh moved to

vacate the judgment of dismissal entered following the settle-

ment, thus reopening the entire action, and, alternatively, to

dismiss the proceedings against him on the basis of several

provisions of Fed.R.Civ.P. 12(b). Hugh has withdrawn the

motion to vacate the judgment under Rule 60(b).’ Hugh’s mo-

tion under Rule 12(b) presents questions of subject matter

jurisdiction, venue, personal jurisdiction, service of process,

and the sufficiency of the pleadings against him. The ques-

tions will be considered in that order.

The memorandum accompanying Hugh’s motion to

dismiss offers little enlightenment concerning the basis for his

claim that this court lacks jurisdiction over the subject matter

of the motion to enforce the settlement agreement. He ap-

pears to rely on the fact that he was not a party to the litiga-

tion that was settled. While this may be offered as a defense

» See the Transcript of the December 7, 1978 Hearing, at 9-11.

32a

on the merits to the action to enforce the settlement, it has

nothing to do with the subject matter jurisdiction of this

Court. It is clear beyond cavil that a court may entertain an

action to enforce a settlement of litigation pending before it.‘

Pearson v. Ecological Science Corp., 522 F.2d 171 (Sth Cir.

1975), cert. denied sub nom, Skydell v. Ecological Science

Corp., 425 U.S. 912, 96 S.Ct. 1508, 47 L.Ed.2d 762 (1976);

Massachusetts Casualty Insurance Co. v. Forman, 469 F.2d

259 (Sth Cir. 1972); Cia Anon Venezolana de Navegacion v.

Harris, 374 F.2d 33 (Sth Cir. 1967).

Hugh objects to venue on the ground that venue was held

proper in the main action only because defendant waived its

objection, an act which cannot be imputed to Hugh. See Lee

v. Hunt, 431 F.Supp. 371, 39 (W.D.La.1977). This argument

fails on two counts. First, judicial economy and the policy

favoring settlement as an end to litigation require that settle-

ment agreements be enforced in the same court in which the

litigation was pending. Aro Corporation vy. Allied Witan Co.,

531 F.2d 1368, 1371 (6th Cir.), cert. denied, 429 U.S. 862, 97

S.Ct. 165, 50 L.Ed.2d 140 (1976); D. H. Overmyer Co. v.

Loflin, 440 F.2d 1213 (Sth Cir.), cert. denied, 404 U.S. 851,

92 S.Ct. 87, 30 L.Ed.2d 90 (1971). Second, an action to en-

force a settlement agreement is analogous to an action for

breach of contract. Kaspar Wire Work, Inc. v. Leco

Engineering and Machine, Inc., 575 F.2d 530, 538 (Sth Cir.

1978); Florida Education Association, Inc. v. Atkinson, 481

“ Even assuming the soundness of the recent decision in Fairfax

Countywide Citizens v. Fairfax County, 571 F.2d 1299 (4th Cir.),

cert. denied, 439 U.S. 1047, 99 S.Ct. 722, 58 L.Ed.2d 706 (1978)

(independent basis for jurisdiction required in action to enforce set-

tlement — as opposed to reopening the action under Rule 60(b) —

unless settlement agreement is contained, or to be contained, in

judgment), but see Aro Corp. v. Allied Witan Co., 531 F.2d 1368

(6th Cir.), cert. denied, 429 U.S. 862, 97 S.Ct. 165, 50 L.Ed.2d 140

(1976) (lack of diversity does not deprive court of power to enforce

settlement agreement not contained in judgment), this Court has

jurisdiction because Hugh is a citizen of Maryland, plaintiff is a

citizen of Georgia, and defendant is a citizen of Texas.

33a

F.2d 662, 663 (Sth Cir. 1973). The subject and merit of the

original litigation are no longer material, the cause of action

for enforcement arises out of Hugh’s signing and repudiation

of the agreement in this district. Thus, not only is venue pro-

per in this district, this may be the only court in which the

matter might have been brought.’

The memorandum in support of the motion to dismiss is

also silent regarding the related questions of personal jurisdic-

tion and insufficiency of service of process. The motion itself

simply states that Hugh has not transacted any business or

had other contacts with this state sufficient to support invoca-

tion of the long-arm statute. This is clearly not so. The

negotiation and execution of a settlement agreement con-

stitutes transaction of business and, when that agreement is

the subject of a lawsuit, justifies resort to the long-arm

statute. Meetings & Expositions, Inc. v. Tandy Corporation,

490 F.2d 714, 717 (2d Cir. 1974). Further, joinder of non-

parties involved in the settlement process is a permissible

alternative to an independent action. Wood v. Virginia Haul-

ing Co., 528 F.2d 423 (4th Cir. 1975); Meetings & Exposi-

tions, Inc. v. Tandy Corporation, supra.

Accordingly, the motion to dismiss must be denied. The

challenge to the sufficiency of the pleadings under Rule

12(b)(6) will be referred to the merits, to which we must now

turn.

The settlement in this case is a creature of the unusual

family setting in which it was born. The agreement appears at

* The Court cannot agree with defendant that filing a motion to

vacate the judgment simultaneously with an objection to venue con-

stitutes a waiver of the latter. The spirit of the Federal Rules is to

encourage unitary rather than fragmentary proceedings, even if this

means placing inconsistent claims and defenses at once before the

court. 15 Wright, Miller & Cooper, Federal Practice and Procedure

§3829 at 198.

34a

once generous and exacting, reflecting, perhaps, the powerful

incentives for compromise on both sides of the table. Con-

trary to the normal inference offered by a settlement at this

stage of the proceedings, Mrs. Lee was not negotiating from a

legal position of strength. A series of evidentiary rulings

issued during the trial had greatly restricted the scope of her

claim and proof.

On the second day of trial, the Court ruled that Mrs. Lee

could not introduce parol evidence to prove that the 1942 set-

tlement with H.L. Hunt was not intended to encompass her

claim of community property.‘ The following day the Court

ruled that the civil effects of the alleged putative marriage

ended in 1934 when Mrs. Lee admittedly discovered the pre-

existing impediment to her marriage, namely, H.L. Hunt’s

marriage to Lyda Bunker Hunt. Thus, the 1942 settlement

was not voided by the contractual incapacity between husband

and wife. By the same token, her claim of community proper-

ty was restricted to the period from 1925 to 1934.’ Finally, on

the fourth day of trial, the Court ruled that the jury would

not be allowed to consider the claim that H.L. Hunt promised

to acknowledge their marriage in his will and to treat her

children equally with the children of his first marriage,

because she was unable to produce the corroborating witness

required by the Louisiana Dead Man’s Statute.'

Mrs. Lee’s remaining response to the Estate’s defense of

compromise and transaction was to attempt to void the 1942

agreement on grounds of fraudulent inducement—that H.L.

* See the ‘“‘Rulings on Evidence’’ filed on January 10, 1978.

(Copy attached.)

’ See the Memorandum Ruling filed on January 11, 1978. (Copy

attached.)

* See the Memorandum Ruling filed on January 13, 1978

(together with the first part of the Ruling of January 10). The Rul-

ing was issued before the testimony of Wright Matthews, and

alludes to the possibility that he might become the necessary cor-

roborating witness. He did not. (Copy attached.)

35a

Hunt misrepresented, or failed to disclose, the value of the

community property.’ Beyond the difficulty of proof, this tac-

tic faced a serious objection of prescription due to the passage

of nearly thirty-four years between execution of the agreement

and the filing of this suit. While none of the rulings impaired

Mrs. Lee’s chances of establishing the putative marriage,'® she

was aware of the substantial and potentially damaging

evidence to be presented by the defendant on that issue.

Mrs. Lee thus approached the Monday morning settle-

ment weighing the sacrifice of her opportunity for official

recognition of her marriage against the benefit to herself and

her family from a multi-million dollar settlement. There was

also the consideration that a substantial settlement would tend

to confirm her claim in the public mind, thereby achieving

some degree of recognition for her marriage. The Estate, on

the other hand, was weighing these costs against its interest in

withdrawing the dispute from the public arena, avoiding the

chance of a partial verdict against it, and obtaining and end

to all future related litigation.'' Hugh’s stance in the negotia-

tions was one of embattled concession; he neither accomplish-

ed his goal of legitimation nor shared directly in the spoils,

* See the Memorandum Ruling filed on January 10, 1978, at 4-5.

'© “If the settlement was valid, it released any claim to property

of H. L. Hunt by virtue of the relationship between him and Frania

Tye. It does not defeat her right to be declared the putative wife of

H. L. Hunt if she can establish the elements of that claim, but it

bars her recovery of any property by virtue of a declaration that

she was his putative wife.’” Memorandum Ruling of January 10,

1978, at 4.

'' “In the main demand, Mrs. Lee alleged she was the putative

spouse of H. L. Hunt. Had she been successful in such assertion,

the offspring of the relationship might be entitled to claim various

sorts of inheritance rights as legitimate heirs or half-brothers or

sisters of members of [the other families}.’’ Defendant’s Post Hear-

ing Brief in Support of Petition to Enforce Settlement Agreement,

filed on February 7, 1979, at 21.

36a

nor was he even free to fight again another day. As his

counsel, perhaps unwittingly,'’ stated in the briefs: ‘‘as an ac-

commodation to the plaintiff, his mother, Mr. Hunt volun-

tarily agreed to execute a settlement which would terminate

this litigation in order to enable his mother to derive whatever

benefits she could from this proposed settlement.'’”’

Ordinarily, this Court would summarily enforce a settle-

ment agreement such as that dictated in Chambers on January

16. In this case, however, Hugh has raised factual questions

concerning the existence of an agreement and what that agree-

ment covers. In accordance with the teaching of Pearson v.

Ecological Science Corp., 522 F.2d 171, 176 n. 5 (Sth Cir.

1975), and Massachusetts Casualty Insurance Co. v. Forman,

469 F.2d 259 (Sth Cir. 1972), a plenary hearing was held on

December 7, 1978 and all parties were given the opportunity

to present such evidence as they deemed material. The follow-

ing analysis of Hugh’s objections is based on that hearing, the

record, and the Court’s own longstanding involvement with

this lawsuit.

IV.

When presented with a settlement and asked to enforce

it, a court must first determine if a binding agreement was ac-

tually reached and, if so, what the contract provides. Wood v.

Virginia Hauling Co., 528 F.2d 423, 425 (4th Cir. 1975). Set-

tlement agreements being contracts, their enforceability is

governed by the whole law of the forum state. Florida Educa-

tion Association, Inc. v. Atkinson, 481 F.2d 662, 663 (Sth

Cir. 1973). However, the parties are free to choose any law to

govern the contract’s interpretation, which must be

distinguished from its validity or enforceability.

'? See the “‘Reply Memorandum of Hugh L. Hunt in Reply to

Post Hearing Brief in Support of Petition to Enforce Settlement

Agreement’’, filed on February 13, 1979, at 1.

'’ Memorandum in Support of Motion to Vacate or Modify Judg-

ment and Motion to Dismiss, filed on November 22, 1978, at 2-3.

37a

Several of the objections raised by Hugh at the hearing

are directed to the validity of the January 16 agreement. First,

Hugh asserts that he did not participate in any settlement

negotiations prior to the January 16 conference and that he

was not represented by counsel at that conference. Neither cir-

cumstance is of any consequence nor is either assertion entire-

ly correct. Hugh’s letter to this Court details his involvement

in the settlement negotiations during the trial.'* He had also

been involved in retaining counsel for Mrs. Lee and had con-

sulted with them throughout the trial.'’

The transcript of the January 16 conference shows that

Hugh was painfully aware of the effect of the agreement, he

simply didn’t want to permit it. Nonetheless, he stated ‘‘I will

sign whatever papers you want’’—and did. The pressure to

which he was subjected is not the sort of duress that will

relieve one of his knowing obligations. La.Civ.Code arts.

1819, 1851. See United States v. Lamont, 155 U.S. 303, 310,

15 S.Ct. 97, 39 L.Ed. 160 (1894). If Hugh is to void the

January 16 agreement, he must establish some intrinsic defect.

To this end, he asserts that it fails to state the dollar amount

of the settlement and that it was not intended to become bin-

ding until signed by his wife and major children. The first ob-

jection is overcome by La.Civ.Code art. 1894: ‘‘An agreement

is not the less valid, though the cause be not expressed.’’ The

second objection is not so easily met.

'* See Hugh Hunt Exhibit 1, at 2-3, filed in the record of the

December 7, 1978 Hearing (e.g., ‘‘our intention at all times in this

suit was to go for the putative wife issue without compromise with

the cash part being negotiable.’’)

'S Id. at 4. (‘1 even asked our attorneys to hint to the other Hunt

families to allow the putative if they did not have to pay any

money, but our attorneys did not want to consider even mentioning

that idea to them.’’). Hugh signed the contract retaining plaintiff's

counsel and agreed to retain them if the evidence revealed any cause

of action on his behalf.

38a

_ At the outset of the settlement conference, the Court

stated that the transcript would have a place for the par-

ticipants “‘to sign their names indicating their full agreement

with the terms.’’'* This sobering theme was repeated

throughout the agreement, as when the Court reminded

Hugh, just before he left the room, ‘‘that this was a final set-

tlement.’’'’ There is no reasonable basis for believing that the

January 16 agreement was not intended to bind the

signatories. It is true that the agreement contemplated that the

spouses and major children of Mrs. Lee’s children, or their

representatives, would be required to sign the more formal

document.'* However, it is equally true that this requirement

was inserted solely for the benefit of the Estate and other

Hunt families, and could thus be waived by them.'* Probst v.

DiGiovanni, 232 La. 811, 95 So.2d 321, 324 (1957); Cuna v.

Elton Lumber Co., Ltd. 148 La. 1097, 88 So. 493 (1921);

Lotz v. Hessler, 369 So.2d 265 (La.App. 4th Cir.), writ

denied, 371 So.2d 1343 (La.1979). The more formal document

does not require the signatures of his spouse and children

because the Estate determined to its satisfaction that these

persons have rights derivative only from Hugh, and his

signature alone suffices.”

'* Trial transcript at 1256.

'? Id. at 1267.

'* “It is understood that this release will be signed by Mrs. Lee

and by her children and grandchildren. ... Or their represen-

tatives.”’ Trial transcript at 1273 (counsel for the Estate).

'* “In our discussion, I indicated that it was represented to me

that the major children of these people need not sign, had no legal

rights. If we discover they do have legal rights, we are going to re-

quire them to sign.”’

**{I}f we determine that they (spouses) have legal . . . rights, we are

not going to be signing that release if they don’t.’’ Trial transcript

at 1265 and 1274. (Counsel for children of Lyda Bunker Hunt).

*® Post Hearing Brief in Support of Petition to Enforce Settle-

ment Agreement, filed on February 7, 1979, at 20.

39a

Hugh contends that the requirement that his own family

sign the more formal document was the cause of his agree-

ment to be bound. But this is not a case of reciprocal

agreements; Hugh would derive no benefit from the agree-

ment of his family, nor would they benefit from his agree-

ment. Rather, it was from their refusal to sign that he hoped

to benefit, to be released from his agreement. This argument

can only be understood from the point of view of a promisor

in bad faith. No good faith party to a contract can have as

his motive the defeat of the agreement. However, the record

is replete with instances of such an attitude on the part of

Hugh. Shortly after the settlement conference, Hugh con-

demned the agreement, stating ‘‘if I could get out of it I

would get out of it.’’’‘ This Court will not assist Hugh in that

effort. See La.Civ.Code art. 1901. The January 16 agreement

was voluntarily executed with knowledge of its binding effect,

and any mistake of law or fact on Hugh’s part cannot void it.

La.Civ.Code arts. 1825, 1846(2). The question thus becomes

whether the document that Hugh has refused to sign is an ac-

curate reflection of the January 16 agreement.

v.

The January 16 agreement clearly contemplated that a

more formal document would be drafted embodying the

releases described in the agreement. Preparation of this docu-

ment, the ‘‘Master Settlement Agreement’’, was commenced

immediately after the conference by all counsel involved in

that agreement. Contrary to the statement of Hugh’s counsel

in the briefs, it did not take eight months of hard negotiating

to confect that document. By the time of the February 25

conference, the document was largely complete. At that point,

however, Hugh stated that he needed time to consult his

counsel. While the parties awaited his response, Mrs. Lee

discharged her counsel and was delayed in enrolling new

counsel. Finally, Hugh refused to sign and the Deposit Agree-

*' Transcript of December 7, 1978 Hearing, at 94.

40a

ment and other papers relating to this motion had to be

prepared.

It should be noted that all of the eighteen necessary

signatories other than Hugh, many of whom have interests

similar to his, have signed the agreement, reflecting their

belief that it accurately represents their earlier agreement. The

Estate contends that the result should be the same even if the

Master Settlement Agreement were materially different,

because Hugh cannot be heard to complain of the non-

performance of a condition of the earlier agreement, (i.e.,

that a representative more formal document be drafted) when

he caused that non-performance by refusing to negotiate in

good faith. The Court need not rely on that defense because it

finds that all of the provisions of the Master Settlement

Agreement are within the contemplation of the January 16

agreement.”?

Hugh maintains that the Master Settlement Agreement

departs from the January 16 agreement in its treatment of five

subjects: confidentiality, the Reliance Trusts, distribution of

the settlement proceeds, the scope of the releases, and the

choice of law to govern interpretation of the agreement. The

arguments will be considered in that order.

The January 16 agreement permanently prohibits public

communication by any party to the agreement concerning the

lawsuit or the relationship between Mrs. Lee and H.L. Hunt

and between their respective families. It also provides that the

more formal document shall contain ‘‘appropriate indemnity

provisions.’”” Hugh complains that the Master Settlement

Agreement is too restrictive and objects to its provision for li-

quidated damages. While certainly more specific, the master

agreement is no more restrictive than the broad language of

2 The obligation of contracts extends not only to what is ex-

pressly stipulated, but also to everything that by law, equity or

custom, is considered as incidental to the particular contract, or

necessary to carry it into effect.’’ La.Civ.Code art. 1903.

4la

the initial agreement. Further, the provision that any profits

of the breach of confidentiality shall constitute liquidated

damages is the minimal indemnity provision that could

reasonably be deemed appropriate. The fact that this and

other provisions of the master agreement apply to non-

signatory members of Mrs. Lee’s family is of no consequence

because the agreement holds only Mrs. Lee liable for their

conduct.”?

Hugh also objects to the master agreement’s provision

that the record be sealed by order of Court, on the grounds

that it binds persons not parties to the lawsuit. His interpreta-

tion of the master agreement is accurate but it represents

merely the consent of the parties to the Order previously

entered by the Court on January 23, 1978. The restrictions

imposed upon Mrs. Lee’s disposition of certain items of

jewelry and personal letters that had been introduced as

evidence at the trial are necessary incidents of their release

from the custody of the Clerk, an act to which Hugh does not

object.

The next subject of dispute is the master agreement’s

failure to address the desire of Mrs. Lee and Hugh to obtain

a new trustee or advisory board for the Reliance Trusts. These

trusts were formed by Mrs. Lee in 1941 for the benefit of her

four children. In the January 16 agreement the Estate agreed

to see what it could do about installing officers more to the

liking of Hugh and Mrs. Lee. Upon reviewing the act estab-

lishing the trusts, the Estate concluded, and the Court agrees,

that no one can effect the removal of the officers except the

officers themselves, without terminating the trust.** Accor-

dingly, reference to the substitution of trust officers was ap-

propriately omitted from the master agreement.

*" See Master Settlement Agreement at 12, Joint Exhibit 9 filed in

the record of the December 7, 1978 Hearing.

** See the Act of Donation of April 12, 1941, filed in the record

on December 28, 1978.

42a

At the close of the settlement conference the question of

distribution of settlement funds was raised. The concern was

that improved tax treatment could be obtained if any money

destined for other members of Mrs. Lee’s family went directly

to them rather than passing through Mrs. Lee first. Mrs. Lee

stated that at least half of the money would go to trust funds

being established for her grandchildren. The Master Settle-

ment Agreement provides that the entire amount shall be paid

jointly to Mrs. Lec, her lawyers, her two living children, and

the major children of her two deceased children.’’ The change

is not a material one since Mrs. Lee and the other recipients

of the funds have approved the manner of payment. Hugh

has no proper interest in the matter.

The most significant subject of dispute is the scope of the

releases. Hugh objects to the release of future claims against

members of the other families which are not related to the

subject matter of the lawsuit. And well he might object but

for the fact that no such release is required by the master

agreement. That agreement, like the January 16 agreement,

requires a release of all claims, present and future, arising out

of the subject matter of the lawsuit—the relationship between

Mrs. Lee and H.L. Hunt. However, only existing claims bet-

ween members of the different families are released if they are

not related to the lawsuit.

The January 16 agreement provides that members of each

family shall release all inheritance rights in the estates of

members of the other families. Hugh claims that the January

16 agreement was intended to release only rights of intestate

succession while the master agreement would cover testamen-

tary rights, as well. All parties knew that the settlement agree-

ment was to end all rights arising from the relationship bet-

ween Mrs. Lee and H.L. Hunt. Obviously, this would include

rights as heirs at law in the intestate succession of any

member of the other families. Less obviously, it would in-

** See Joint Exhibit 8 filed in the record of the December 7, 1978

Hearing.

43a

clude any right under a testamentary bequest referring to

‘brothers and sisters.’’ It may be difficult to understand why

sO much energy would be expended regarding release of a

right which could be changed at any time by the testator. Part

of the debate is, no doubt, attributable to the difficulty of

reviewing and amending the myriad wills and _ trust

documents. However, all parties were also aware that the

claim could be made that a certain member of one of the

families no longer possessed testamentary capacity. Thus it

was clearly understood that existing testamentary rights would

also have to be released, allowing them to be specifically

reestablished after the date of the settlement if the testator

wished to include members of the other families. The Master

Settlement Agreement is reasonably designed to fulfill that

intent.

Hugh also objects to one of the final provisions of the

master agreement: ‘‘The conditions, terms, provisions and

covenants contained in this agreement shall apply, inure to the

benefit of, and be binding upon the parties hereto, and their

respective heirs, successors, assigns, and legal represen-

tatives.’’** This provision adds nothing to what the law gover-

ning contracts already provides. See, e.g., La.Civ. Code arts.

1997, 1999.

The final subject of dispute consists of Hugh’s related

objections to the choice of Texas law to govern the agree-

ment, and to the waiver of future inheritance rights. Hugh

properly asserts that Louisiana law looks with disfavor upon

attempts to waive future inheritance rights. However, as none

of the parties reside in Louisiana, that substantive policy is of

no consequence. Article 10 of the Civil Code requires applica-

tion of the law of the place where the contract is to have ef-

fect, which, in the case of the persons being released by

Hugh, is Texas. Hugh does not claim that the waiver is void

under the law of Texas.

** Master Settlement Agreement, at 15, Joint Exhibit 9 filed in

the record of the December 7, 1978 Hearing.

44a

For the same reason, it is clear that the parties intended

Texas law to govern the agreement. Under accepted canons of

construction, the parties must be deemed to have intended to

create an enforceable contract. A court should not lightly read

an agreement in such a way as to frustrate this intent. To re-

quire application of Louisiana law would defeat the aim of

the parties, most of whom reside in Texas. Accordingly, the

Court finds that the Master Settlement Agreement properly

reflects the intent of the parties to the January 16 agreement.

CONCLUSION

Having found that Hugh S. Hunt is properly before this

Court, that he executed a binding contract on January 16,

1978, and that this contract obligates him to execute the

Master Settlement Agreement and accompanying documents,

the Court does hereby order him to do so. Although at the

December 7, 1978 hearing he agreed to waive the opportunity

to comply with this Order, the Court will extend him a brief

opportunity once more.

If Hugh has not executed the documents by 5:00 O’Clock

P.M. on Thursday, December 27, 1979, the Court will direct

the Clerk to execute them in his place by a judgment to be

submitted by counsel for the Estate on Friday, December 28,

1979.

45a

APPENDIX F

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No. 80-2126

Hucu S. Hunt, Petitioner,

Vv.

Ray Lee Hunt, Executor Or THE

Estate Or H. L. Hunt, Respondents,

Certificate of Service

Tus Is To Certiry THAT I HAve SERVED THE OTHER

Parties SHOWN IN THE ATTACHED CASE WITH Copies OF

PETITIONER’s PETITION For Writ OF CERTIORARI By

Deposiminc Copres Or SAME IN THE UNITED STATES MAIL,

WitH SUFFICIENT PosTAGE THEREON, TO THEIR ATTORNEYS

At THE FOLLOWING ADDRESSES:

Mrs. FRANIA TYE LEE

PLAINTIFF

%J. Ed Segraves

1000 Oliver Street

Decatur, Georgia 3030

Ray Lee Hunt,

Executor Or THe Estate Or H. L. Hunt

DEFENDANT-APPELLEE

%SIDNEY E. Cook

Cook, CLARK, GAN, YANCEY & KING

600 COMMERCIAL NATIONAL BANK BUILDING

SHREVEPORT, LOUISIANA 71101

Pour J. Hirscuxop, Esq.

P. O. Box 1226

ALEXANDRIA, VIRGINIA 22313

46a

Tus THe 16 Day OF June, 1980..

/s/ Huon S. Hunt

Hugh S. Hunt

Pro SE

12219 River Roap

Potomac, Mp 20854

PHONE # 301 299-2920