Petition for Writ of Certiorari — Eubank v. International Paper Co.
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IN THE
Supreme Court Of Che United States
October Term, 1985
ROBERT B. EUBANK, PETITIONER
INDIVIDUALLY AND ON BEHALF OF
ALL OTHER SHAREHOLDERS OF
LEE LUMBER COMPANY, LTD.,
VS.
LEE LUMBER COMPANY, LTD.,
Respondent
vs.
INTERNATIONAL PAPER COMPANY,
Respondent
ON WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
PETITION FOR CERTIORARI
ROBERT B. EUBANK
Robert B. Eubank,
Attorney at Law
15 Office Park Circle,
Suite 203
Birmingham, Alabama 35223
Telephone: (205) 324-9217
QUESTIONS PRESENTED FOR REVIEW
1. Whether dismissal of a complaint claiming to
state an unprescribed cause of action as having stated
another action held prescribed, is res judicata to a
Subsequent suit on the former unprescribed cause of
action.
2. Whether an award of attorneys’ fees may be
made against an appellant for filing a frivolous appeal,
where appellant’s motion for a hearing on the substan-
tiality of the issues on appeal was denied, and the only
evidence of record was affidavits and opinions from
other attorneys and professors of law that appellant’s
cause was not frivolous but correct.
Opinions Below
Jurisdiction
Constitutional and Statutory Provisions
Involved
Statement of the Case
Reasons for Allowance of the Writ
Conclusion
Appendices:
Brewton Lumber Co. Case
Lee II
Lee III
Lee IV
Affidavits of Messrs. Chiarkas, Gravel,
Randolph and Eubank - Lee IV
Constitutiona! Provisions and Statutes
Page ii
TABLE OF CONTENTS
Appendix A
Appendix B
Appendix C
Appendix D
Appendix E
Appendix F
TABLE OF AUTHORITIES
Cases
Chauvin v. Kirchoff, 194 So.2d 805
(La.App. 1967) 15
Daigle v. Pan American Oil Co., 108 So.2d
516 (La. 1958) 12
Duer & Taylor v. Blanchard, Walker, O’Quin, &
Roberts, 558 F.2d 328 (Sth Cir., 1977),
354 So.2d 192 (La. 1978), 568 F.2d 472
(Sth Cir. 1978) 12
Eubank vy. Lee Lumber Co., Ltd. v. International
Paper Co., U.S.D.C., W.D.La., No. CA-82-1446
(2/3/83), affirmed Sth Cir. No. 83-4112 \
(10/27/83), cert. den. U. S. Sup. Ct., .
No. 83-1918 (10/1/84) 8
Eubank v. Lee Lumber Co., Lid. v. International
Paper Co., 617 F.Supp. 14 (W.D.La.1985)
affirmed Sth Cir. No. 85-4509 (12/20/85) 1,9
Green v. Chamberlain, 60 So.2d 120
(La.App. 1952) 15
Harrison v. Alombro, 341 So.2d 1165
(La.App. 1977) cert. den. 343 So.2d 1063 12
International Paper Co. v. Maddox, 203 F.2d 88
(Sth Cir. 1953) 15
L. L. Brewton Lumber Co., Inc. v. Continental Can
Co., Inc., U.S.D.C., W.D.La., No. 14680 (12/8/72),
affirmed 480 F.2d 923 (Sth Cir. 1972) 5, 7, 11, 18
Lawlor v. National Screen Service Corp.,
349 U.S. 322, 75 S.Ct. 865, 99 L.Ed. 1122
(1955) 15
Page iii
Lee Lumber Co., Ltd. v. Internationai Paper Co.,
321 So.2d 42 (La.App. 1975), cert. den. 324 So.2d
423 (La. 1976), 345 So.2d 212 (La.App. 3rd Cir.
1977), cert. den. 347 So.2d 503 (La. 1977) 6, 7
Lee Lumber Co., Ltd. v. International Paper Co.,
U.S.D.C., W.D.La., No. CA-77-1097 (11/7/78),
affirmed 5th Cir. No. 79-1309 (5/15/80) 7, 13, 14
Maher v. City of New Orleans, 516 F.2d 1051
(Sth Cir. 1975), reh. denied 521 F.2d 815,
cert. denied 96 S.Ct. 2225, 425 U.S. 950,
48 L.Ed.2d 8390 12
Mitchell v. Bertolla, 340 So.2d 287 (La. 1976) 9, 12
Mott v. Clemons Bros. Lumber Co., Inc.,
247 So.2d 148 (La.App., 1971) 12
Mott v. Smith, 273 So.2d 675 (La.App. 1973) 12
Murray v. Barnhart, 42 So. 489 (La. 1906) 5
N.L.R.B. v. Amalgamated Clothing Workers of
America, AFL-CIO, Local 990, 430 F.2d
966 (Sth Cir. 1970) 8
Nilsen v. City of Moss Point, Mississippi,
701 F.2nd 556 (Sth Cir. 1983) 15, 17
Northeast Louisiana Detachment of Marines v.
Monroe, 253 So.2d 107 (La.App. 1971) $, 7
R. G. Claitor’s Realty v. Juban, 391 So.2d
394 (La.1980) 13, 15
Rich v. Donaghey, 177 Pac. 86 (Okla. 1918) 12
Walmsley v. Pan American Oil Company, 153
So.2d 375 (La. 1963) 12
Page iv
Statutes
Constitution of the United States,
Amendment V \
Constitution of the United States,.
Amendment XIV
Federal Rules of Civil Procedure, Rule 56(c)
Federal Rules of Appellate Procedure, Rule 38
Fifth Circuit Local Rule 47.6
Louisiana Civil Code, Art. 2032
Louisiana Civil Code, Art. 2034
Louisiana Civil Code, Art. 2221
Louisiana Civil Code, Art. 2464
Louisiana Civil Code, Art. 3542
Louisiana Code of Civil Procedure, Art. 424
28 U.S.C. 294(b), -(c), -(d)
28 U.S.C. 137
Page v
17
17
8, 18
Petitioner respectfully prays that a writ of certio-
rari issue to review the judgment of the United States
Court of Appeals for the Fifth Circuit entered in this
proceeding.
OPINIONS BELOW
The opinion of, the District Court below appears at
617 F.Supp. 614 (1985), and is reproduced at Appendix
D., p. 1, together with the District Court judgment.
The opinion of the Court of Appeals below is un-
published and is reproduced at Appendix D, p. 8, to-
gether with orders on motions for rehearing and re-
hearing en banc.
JURISDICTION
The judgment sought to be reviewed herein was
rendered and entered December 20, 1985 by the Court
of Appeals for the Fifth Circuit. Petitions for rehear-
ing and for rehearing en banc were denied respectively
on January 31, 1986 and February 4, 1986. This
Court’s jurisdiction is invoked under 28 U.S.C. 1254(1).
CONSTITUTIONAL AND STATUTORY PROVISIONS
Constitution of the United States, Amendment V.
Constitution of the United States, Amendment XIV.
Federal Rules of Civil Procedure, Rule 56(c).
Federal Rules of Appellate Procedure, Rule 38.
Local Rule 47.6, Court of Appeals for the Fifth
Circuit.
Louisiana Civil Code, Arts. 2032, 2034, 2221, 2464,
3542.
Louisiana Code of Civil Procedure, Art. 424.
28 U.S.C. 294(b), -(c), -(d), -(e).
28 U.S.C. 137.
Pursuant to United States Supreme Court Rule
21.2(f), the above are set forth verbatimn at Appendix
F.
STATEMENT OF THE CASE
If a landowner’s neighbor were to misread an ar-
chitect’s plans, for example, and build a brick fence
that lay partly upon the landowner’s lot, the landowner
could file a suit against the neighbor for removal of
the fence. Ordinarily he would succeed. All the more
so, if the local court had recently rendered judgment
(since affirmed on appeal) removing such a fence from
another’s land, built under the same circumstances.
Suppose however the judge construed the suit as an
action in tort, for the neighbor's negligence in follow-
ing the architect’s plans, and dismissed the suit for the
reason that limitations on actions in tort ran in one
year (the suit having been brought after that time).
While the owner's frustration would be intense, his
attorney ought to reassure him. Simply because the
tort action (whether or not that were the proper cause
of action) had prescribed, does not mean that other
causes of action which have not prescribed cannot still
be brought. For example, trespass, or an action of un-
lawful detainer, both of which (for a start) continue to
accrue so long as the fence is there. The judge’s mis-
take may be lamentable, the attorney would advise, but
it is not fatal to the owner's cause. Any other cause of
action that lies may still be brought, as long as it has
not prescribed. The prior judgment disposed of only
the cause of action held prescribed, and is res judicata
Page 2
ec Al ts ct
only to bringing the same cause of action again - not
to bringing another cause of action.
The attorney might relate the reasons for such a
rule. In olden days, there was not just one form of
lawsuit, bu’ many - many “causes of action,” as they
were called. They were quite technical in form, and
susceptible to being misstated and dismissed for various
defects having nothing to do with the merits of the sit-
uation - including, notably, prescription. Since statutes
of limitation were drawn up on particular causes of
action, the limitations on one form of action did not
bar another, nor did a judgment of dismissal for pre-
scription of one cause of action bar the later bringing
of another. In more enlightened times, we have only
one form of action. Ideally a court will consider any
of the old “causes of action” that might lie in the facts
pleaded, in determining whether the entire suit has
prescribed. But should the court fail to do so, such is
the genius of the law that suit may be brought again
successfully on the ignored, unprescribed causes of ac-
tion - whether they were originally overlooked through
error of the litigant and his attorney, or the court.
However an attorney familiar with the case below
might instead advise as follows. Should the landowner
persist in attempting to state a correct, unprescribed
cause of action, over a ten-year period the district
court will studiovsly ignore the previous factually
identical case; decline to mention it in three straight
opinions; withhold those three opinions themselves
from publication; and summarily dismiss all such sub-
sequent litigation as barred by res judicata. As for the
court of appeals, it will twice affirm without opinion,
in violation of its own rules; refuse also to distinguish
Or mention the case in point (previously affirmed by
it); and also withhold its actions from publication. On
the third appeal, it will issue an opinion, also unpub-
lished, awarding sanctions against the landowner for
Page 3
filing a frivolous appeal. In so doing it will take no -
notice either of testimony of several attorneys that the
appeal and the landowner’s position are correct, or of
the complete absence of any opposing evidence from
the neighbor building the fence.
The Lease
In 1946 Lee Lumber Company, Ltd. (‘‘Lee’’) leased
some 18,000 acres of timberlands, near Alexandria,
Louisiana, to International Paper Company (‘‘Inter-
national’) until 2006. Under the timber lease’s terms,
the rent was $1,400.00, or 7.7¢ per acre, per year.
International was also to pay property taxes on its tim-
ber and leasehold, Lee to pay such taxes only on the
land’s residual value. A 1950 amendment inci2ased
International’s rent to $1,400.00, plus the excess (if
any) of Lee’s property taxes over that amount - in
short, annual reimbursement of the prior year’s prop-
erty taxes.
By separate contract International bought the tim-
ber then standing on the lands, for $150,000.00, or
$8.33 per acre.
The parties provided that neither the lease nor the
timber sale was consideration for the other. ‘The lease,
noting the timber sale, specifically stated that its own
agreed “primary purpose” was the growing of forest
products in the future and that “the consideration paid
herefor covers all such rights and privileges as herein
provided.” The lease reserved to International a right
to cancel it in whole or in part at any time, without
affecting the timber sale.
The Litigation
The Contentions That The Lease is Void. First Lee,
then petitioner, have contended for over 10 years that
the lease is void. The contentions are two:
Pare 4
(1) that under Louisiana law the rent or
consideration was not “serious,” was “out of all
proportion” to the value of the lease, La.C.C.
Art. 2464; Murray v. Barnhart, 42 So. 489 (La.
1906); Northeast Louisiana Detachment of
Marines v. Monroe, 253 So.2d 107 (La.App.
1971); L. L. Brewton Lumber Co., Inc. y.
Continental Can Co. Inc., U.S.D.C., W.D.La. No.
14680 (12/11/71),° affirmed 480 F.2d 923 (Sth
Cir. 1972); and
(2) that International’s right to cancel also
subjected that consideration to a “potestative
condition” rendering a contract void* under
Louisiana Law, La.C.C. Art 2034, Murray
(supra), and other cases.
Judge Scott’s Brewton Lumber Co. Opinion. The
same district judge below, in L. L. Brewton Lumber Co.
v. Continental Can Co., canceled renewals (totaling 99
years) of a timber lease, because the only rent was
payment of ad valorem taxes. He noted that whether
such rent supported a valid lease was the issue; that
Louisiana law required a serious consideration for a
contract to be valid; that property tax reimbursements
by definition leave no conceivable profit to the lessor
(since the lessor has already incurred a like expense);
and that this would not be sufficient consideration
“even if there were no timber on the property and the
land were bare.” The opinion concluded:
“Under no conditions can rent, consisting solely
of the reimbursement of taxes, be considered
serious consideration as contemplated by
Louisiana law.” L. L. Brewton Lumber Co., Inc.
v. Continental Can Co., Inc., Appendix A, pp.
7-8.
. Appendix A hereto.
3 In similar manner, a contract is void at common law for want of
“‘mutuality of obligation.’
Page 5
The Fifth Circuit affirmed Brewton Lumber Co. It
has been neither overruled nor qualified to this date.
Lee I. Lee filed the first suit? (“Lee I’) in the
Louisiana courts* in 1973. International moved for a
dismissal, arguing that the cause of action stated was
the “action of nullity or rescission,” and that it had
prescribed under Louisiana Civil Code Articles 2221
and 3542 (providing for prescription within five and
ten years, respectively). The Louisiana lower courts
dismissed Lee I solely for prescription of that action.
The Louisiana Supreme Court declined certiorari.
However it disavowed the conclusion of law below
with the observation that
“because the facts relied on by the court of ap-
peal show serious consideration, the result
reached is correct.”
Among others, the late Judge Albert Tate® of the
Fifth Circuit, then a Louisiana Supreme Court Justice,
dissented. He noted that
. Lee Lumber Co., Ltd. v. Internationa! Paper Co., 321 So.2d 42
(La.App. 1975), cert. den. 324 So.2d 423 (La. 1976), 345 So.2d 212
(La.App. $rd Cir. 1977), cert. den. 347 So.2d 503 (La. 1977).
4 Lee’s counsel at this time were unaware of the Brewton Lumber Co.
case, although it had already been decided.
5 An opinion below had remarked that tax reimbursements over 22
years had amounted to $105,814, Lee Lumber Co., Ltd. v. International
Paper Co., 345 So.2d 212 (La.App., 1977), p. 214. Substantial as a fig-
ure standing alone, the adequacy of $105,814 as rent for 18,000 acres
for 22 years was never tried, as it had been in the Brewton Lumber Co.
case. The sum works out to about 27 cents per acre per year.
6 During his tenure on the Fifth Circuit, Judge Tate never sat on a
panel considering any of the Lee Lumber Company appeals. Judge
Tate died in early 1986.
Page 6
“The majority has found facts justifying a
hoiding of serious consideration, never passed
upon by the previous courts. The majority thus
does not reach the issue posed by the court of
appeal holding, 321 So.2d 42 (La.App. 3rd
Circuit, 1975), that actions to declare a null
lease are prescribed by Civil Code Articles
2221, 3542. This court should have granted
writs to decide this important issue, which in
my opinion was incorrectly decided below.”
Lee Lumber Co. Ltd., v. International Paper Co.,
347 So.2d. 503, p. 504.
As convinced as Judge Tate that unprescribed
causes of action lay to avoid a null lease that did not
expire until 2006, Lee determined to pursue the matter
further.
Lee II (The Case Now Held To Be Res Judi-
cata). Lee brought the second suit” (“Lee II’’) in fed-
eral district court before Judge Nauman S. Scott, au-
thor of the Brewton Lumber Co. opinion. Lee II sought
a declaratory judgment that the lease was void, and
recited as its underlying causes of action the action to
quiet title, the possessory action, the action for recov-
ery of a thing not due, and the action of eviction, none
of which had prescribed.
International moved for summary judgment, argu-
ing that the cause of action stated ,vas nullity or
rescission and that it had prescribed.2 The District
7 Lee Lumber Co., Ltd. v. International Paper Co., U.S.D.C., W_D.La.,
No. CA-77-1097 (11/7/78), affirmed 5th Cir. No. 79-1809 (5/15/80)
(Appendix B hereto).
. Both Northeast Detachment of Marines and Brewton Lumber Co.
canceled leases for want of serious consideration, well after expiration of
the (maximum) ten year limitations on the action of nullity or rescis-
sion.
Page 7
Court granted summary judgment, dismissing Lee II on
that ground only.
Lee III. Lee then refused further litigation, citing
expense and lack of results. Petitioner, an attorney and
shareholder of Lee, filed the third suit? (“Lee III’) in
federal district court as a shareholder’s derivative suit.
Lee III claimed to assert an unprescribed possessory
action directly, as opposed to asserting it in support of
a declaratory judgment action. Upon International’s
motion, however, the District Court again granted
summary judgment dismissing the suit on grounds of
res judicata (though agreeing that the possessory action
had not prescribed).
The Affirmances of Lee II and Lee III. The Fifth
Circuit affirmed Lee II and Lee III under Local Rule
47.6, without opinion, unpublished. That rule provides
for such an affirmance only where the “dispositive”
issue is whether the trial court’s findings of fact were
“not clearly erroneous.”?° Lee II and Lee III made no
findings of fact. The summary judgments below would
have been improper, under FRCP 56(c), unless “‘there
is nO genuine issue as to any material fact and ... the
moving party is entitled to a judgment as a matter of
law.” No findings of fact having been made by the
trial court, it is uncertain exactly what the affirmances
held.
Petitioner filed Lee IV (infra) and sought writs of
certiorari on Lee III from the United States Supreme
Court, but writs were denied. A motion by Interna-
© wubenk v. Lee Lumber Co., Ltd. v. International Paper Co.,
U.S.D.C., W.D.La., No. CA-82-1446 (2/3/83), affirmed 5th Cir. No.
83-4112 (10/27/83), cert. den. U. S. Sup. Ct., No. &3-1918 (10/1/84)
10 4 requirement the Fifth Circuit has promised is to be strictly con-
strued. See N.L.R.B. v. Amalgamated Clothing Workers of America,
AFL-CIO, Local 990, 430 F.2d 966 (5th Cir. 1970).
Page 8
tional for sanctions against petitioner was specifically
rejected.
Lee IV (The Case Now On Appeal). In the mean-
while, petitioner had filed the fourth suit!! (“Lee IV”),
which stated a direct action to quiet title. Upon cross
motions for summary judgment, Judge Scott’* granted
International’s motion and dismissed Lee IV. He held
that all previous litigation was res judicata to Lee IV,
ruling that under Louisiana law any prior decision
arising for the same set of facts was res judicata to any
subsequent litigation.!*
The Court of Appeals affirmed, but held only Lee
II to be res judicata. International moved for attor-
ney’s fees and costs against petitioner. Petitioner
moved for a hearing, which motion was denied. Peti-
tioner also submitted extensive opinions and affidavits
as Eubank v. Lee Lumber Co., Ltd. v. International Paper Co., 617
F.Supp. 14 (W.D.La.1985), affirmed 5th Cir. No. 85-4509 (12/20/85).
as After petitioner filed Lee IV, Judge Scott retired and the case was
assigned to his successor. However by minute entry of February 4,
1985, Judge Scott reassigned the case to himself, on his own motion,
without (according to the clerk of the Western District of Louisiana)
designation by the chief judge or the judicial council, as required by 28
U.S.C. 294(b), -(c), (d) and -(e), or 28 U.S.C. 137.
” Judge Scott held that Mitchell v. Bertolla, 340 So.2d 287 (La.
1976), holding that under Louisiana res judicata the same cause of ac-
tion can be brought yet again if upon different factual grounds, in ef-
fect equated facts with cause of action and allowed only one action
from the same facts.
Page 9
from attorneys and professors of law’* to the effect
” They were:
Prof. Saul Litvinoff
Baton Rougs, Louisiana
Nicholas L. Chiarkas
Washington, D. C.
James 8S. Gravel
Alexandria, Louisiana
Edward G. Randolph, Jr.
Alexandria, Louisiana
Robert B. Eubank
(petitioner)
Birmingham, Alabama
L.L.D.; $.J.D.; J.D.; $.C.D; C.D.;
Professor of Law, Louisiana State
University; Author, Louisiana Civil
Law Treatise, Vols. 6-7, Obligations
(1975); Reporter, Obligations
Committee, Louisiana State Law
Institute; principal author of 1984
revisions to Louisiana Civil Code on
Obligations
Member, Alabama and Pennsylvania
Bar Associations; J.D., Temple
University Law School, 1978; former
Professor of Law, Cumberland Law
School, Birmingham, Alabama; former
Deputy Chief Counsel, U.S. Permanent
Subcommittee on Investigations;
Deputy Chief Counsel, President's
Commission on Organised Crime
LI.B., Louisiana State University
School of Law, 1959; Member,
Louisiana Bar Association, 1959
J.D., Tulane University School of Law,
1967; Member, Louisiana Bar
Association, 1967; former member,
Louisiana House of Representatives,
Louisiana Senate
Member, Louisiana Bar Association
(1968) and Alabama Bar Association
(1973); J.D., Harvard University School
of Law, 1967; LI.M. (in Taxation), New
York University School of Law, 1973;
former Adjunct Professor and Professor
of Law, Cumberland Law School,
Birmingham, Alabama
Professor Litvinoff’s opinion is at Record, pp. 440-463. Affidavits of
the latter four are attached as Appendix E.
Page 10
that petitioner’s position was not frivolous, and was in
fact correct at law. International submitted no oppos-
ing evidence on its motion. However the Court
granted International’s motion and imposed attorney’s
fees and costs upon petitioner.
Unpublished Opinions. Despite the precedential,
even novel, conclusions of law reached in Lee II, Ill
and IV, the District Court and Court cf Appeals opin-
ions and non-opinions were all withheld from publica-
tion (with the exception of the District Court’s Lee IV
Opinion, which was eventually forwarded to West Pub-
lishing Company and published at West’s request).
Basis for Federal Jurisdiction Below
The basis for federal jurisdiction in the District
Court below is diversity of citizenship and amount in
controversy, under 28 U.S.C. 1332.
REASONS RELIED ON FOR ALLOWANCE OF WRIT
The most compelling reason for which petitioner
seeks review is the preservation of the dignity of the
courts, and the respect in which they are held by the
public and members of the bar.
A disinterested observer might deduce, rightly or
wrongly, that the Fifth Circuit’s principal dissatis-
faction with petitioner’s position below has been, not
its error, but its correctness. As to the merits of
whether the lease is void, the clear precedent of the
Brewton Lumber Co. case has been strictly avoided, not
overruled, distinguished or qualified. As to res
judicata, causes of action, and prescription, it is
doubtful that any attorney or court solemnly entertains
the conviction that all causes of action to cancel a lease
which lacks legal consideration, have run before the
lease itself expires.
Res Judicata and Prescription
Page 11
Louisiana, like common law states, recognizes vari-
ous “causes of action,” including the “action to quiet
titie’ which it has borrowed from the common law
states.1* Common law authority is that the quiet title
action lies to avoid a lease which is null for want of
legal consideration, a lessee’s option to cancel, and a
lessee’s breach.!® Beyond doubt, the prescription of
one cause of action does not bar the bringing of
another. Duer & Taylor v. Blanchard, Walker, O’Quin,
& Roberts, 558 F.2d 328 (Sth Cir. 1977), 354 So.2d 192
(La. 1978), 568 F.2d 472 (Sth Cir. 1978). For example,
a prior dismissal for prescription of the possessory
action, does not subsequently bar the bringing of a
petitory action.”
Further Louisiana res judicata is more permissive
of re-litigation, and more reluctant to prohibit it, than
common law rés judicata.!® Even where the same
cause of action was previously brought on one factual
grounds, it is not a bar to the subsequent bringing of
the same cause of action again on different factual
grounds.?®
» Daigle v. Pan American Oil Co., 108 So.2d 516 (La. 1958); Harrison
v. Alombro, $41 So.2d 1165 {(La.App. 1977) cert. den. 343 So.2d 1063;
Walmsley v. Pan American Oil Company, 153 So.2d 375 (Le. 1963).
16 Rich v. Donaghey, 177 Pac. 86 (Okla. 1918). There seems to be no
dispute that the quiet title action lies. Neither Lee II nor Lee IV heid
that it does not.
ay Mott v. Clemons Bros. Lumber Co., Inc., 247 So.2d 148 (La.App.
1971); Mott v. Smith, 273 So.2d 675 (La.App. 1973).
18 Maher v. City of New Orleans, 516 F.2d 1051 (Sth Cir. 1975), reh.
den. 521 F.2d 815, cert. den. 96 S.Ct. 229%, 425 U.S. 960, 48 L.Ed.2d
830.
19 Mitchell v. Bertolla, $40 So.2d 287 (La. 1976).
Page 12
The opinion review of which petitioner seeks held
Lee II, which had claimed to state an underlying action
to quiet title te support a declaratory judgment, to be
res judicata to Lee IV below. The opinion states:
“Plaintiff ... characterized this action as one ‘to
quiet title and of no other cause of action
whatsoever and specifically not of the “action
of nullity or recision.”” ° Because recovery on
this theory was advanced by Lee in Lee II -
and rejected by the court - the district court
correctly dismissed Lee IV on grounds of res
judicata.
* *
“The precise issue in this appeal, whether Lee
was entitled to control of its property in an ac-
tion to quiet title under Louisiana law, was de-
cided against Lee in Lee II in 1980. That
determination is clearly res judicata. R. G.
Claitor’s Realty v. Juban, 391 So.2d 394 (La.
1980).” Eubank v. Lee Lumber Co., Lid. vy.
International Paper Co., Sth Cir. No. 85-4509
(12/20/85), Appendix D, p. 10.
But although Lee claimed that it had stated the action
to quiet title in Lee II, the court rejected the claim.
The District Court’s Lee II opinion stated:
“It is well settled that the nature of the basic
action [underlying an action for a declaratory
judgment] determines the appropriate prescrip-
tive period. See, e.g., Giroir v. Dumesnil, 184
So.2d 1 (La. 1966).” Lee II, Appendix B, p. 5.
“Obviously, the plaintiff has really brought an
action to rescind or nullify a lease. As men-
tioned above, the nature of the action deter-
mines the appropriate prescriptive period. The
prescription applicable to an action for rescis-
sion or nullity of a lease is provided by either
Page 13
ee
Article 3542 or Article 2221 of the Louisiana
Civil Code.” Lee II, Appendix B, p. 6
(emphasis supplied).
* ¢ *
“Plaintiff cites Giroir v. Dumesnil, 184 So.2d 1
(La. 1966), for the proposition that in the case
of an action for declaratory judgment the ap-
plicable period of prescription is that period
applicable to the causes of action underlying the
action for decliratory judgment. This does not
present any obstacle to our holding that plain- |
tiffs action is barred by either Article 3542 or
Article 2221 [governing prescription of the ac-
tion of nullity or rescission]. As already indi-
cated above, we consider the basic action un-
derlying plaintiff’s action for declaratory judg-
ment to be that of nullity or rescission ...” Lee
II, Appendix B, p. 8 (emphasis supplied).
Even had the District Court’s Lee II opinion not
been so explicit in holding the cause of action stated to
be “nullity or rescission,” it was implicit in the dis-
missal for prescription of that action that the opinion
held no other actions to be stated. Otherwise, only that
action would have been dismissed, and the others
would have been heard.
How, then, can the courts hold for purposes of
dismissing a suit (Lee II) that it stated one cause of ac-
tion (“nullity or rescission”), and hold subsequently for
purposes of res judicata that it stated another cause of
Page 14
action (“quieting title”) after all??° There seem to be
only two possibilities - that Lee II was (as then held)
an action of nullity or rescission (not to quiet title), or
that it was not. If the former, Lee IV’s action to quiet
title is a different cause of action. If the latter, the
District Court (not Lee) erred in barring Lee from the
courts, and Lee should not be penalized by res judi-
cata. Nilsen v. City of Moss Point, Mississippi, 701
F.2d 556 (Sth Cir. 1983). In other words, the Lee II
Opinion can at most be construed to have established
that the action before the court was an action of nullity
Or rescission, not that any future actions filed later
would be also.
Arguably, the District Court may have meant in
Lee iI that prescription of the action of nuility or
rescission bars all other actions as well (an unusual
view). If so however, the action to quiet title has
nevertheless continually accrued anew since the Lee II
decision. The Lee II decision would have disposed
only of actions accrued to that time, and would not be
a bar.??
An equally compelling consideration is_ that
limitations does not run against a defense. “The statute
20 The citation of R. G. Claitor'’s Realty in the court's opinion does
not clear the matter up. In that case a prior suit for a declaratory
judgment (as to whether Juban could build a fence} was held to bar a
later one for an injunction (against Juban's building the fence). The
cause of action in both suits was the same, i.e., breach of contract (a
verbal servitude agreement), as were the underlying facts. If Claitor I,
80 to speak, had been held prescribed as a tort action grounded on vio-
lation of a soning statute, and dismissed, Claitor I] would have been
allowed.
31 Lawlor v. National Screen Service Corp., 349 U.S. $22, 75 S.Ct. 865,
99 L.Ed. 1122 (1956); International Paper Co. v. Maddox, 208 F.2d 88
(5th Cir. 1963); Green v. Chamberlain, 60 So.2d 120 (La.App. 1952);
Chauvin v. Kirchoff, 194 So.2d 805 (La.App. 1967).
Page 15
of {imitations is a shieid, not a sword,” it is sometimes
stated. So long as one party claims an enforceable
right to assert an agreement, the other may raise any
action (even that of nullity or rescission) it may have
to avoid the agreement. This principle has for some
time found expression in Article 424, Louisiana Code
of Civil Procedure:
“A prescribed obligation may be used as a
defense if it is incidental to, or connected with,
the obligation sought to be enforced.”
The 1984 revisions to the Louisiana Civil recast the
articles governing prescription of the action of nullity
or rescission, replacing former Articles 2221 and 3542
with Article 2032. That Article provides specifically:
“Nullity may be raised at any time as a defense
against an action on the contract, even after the
action for annulment [formerly the ‘action of
nullity or rescission’] has prescribed.”
A suit by International to enforce the lease, should
Lee physically interfere with International’s operations,
would fail. By what logic is it therefore too late for
Lee to obtain a peaceful adjudication of the matter in
court?
Imposition of Attorney’s Fees
In awarding costs and attorney’s fees against
petitioner, the Court of Appeals overlooked and did
not mention petitioner’s evidence of record on the issue
whether the appeal is “frivolous.” FRAP, Rule 38.
The affidavits of record were that, not only is
petitioner’s point of law not frivolous, it is correct and
should prevail. See Appendix E. Petitioner repeatedly
challenged International, and International had ample
opportunity, to file opposing affidavits and filed none.
Page 16
Petitioner moved for a hearing on the question of
sanctions and attorney’s fees, but the motion was
denied.
Petitioner submits the refusal to consider evidence
on the issue, the imposition of attorney's fees when the
only evidence of record was emphatically against it,
and the denial of a hearing were a denial of due
“process under the Fifth and Fourteenth Amendments to
the Constitution.
Petitioner hopes the Court will note as well that
two of the affidavits, those of Messrs. Gravel and
Randolph, were filed by attorneys who practice before
Judge Scott and before the Fifth Circuit, and that the
Court will come to the appropriate conclusion that the
affidavits were not made lightly. Further, though
petitioner filed four affidavits, the number could as
well have been four thousand. The legal conclusions in
them are not controversial.
Aside from the accuracy of petitioner's arguments,
in terms of the number of suits filed in the confusing
area of the interplay between “res judicata” and “cause
of action,” Lee and petitioner have so far managed
only to tie the apparent record of the unsanctioned Ms.
Nilsen (four suits) in the Nilsen v. Moss Point cases.
Further, even the appellate opinion in Lee IV finds
petitioner’s arguments meritorious, in that it concludes
that only Lee II is res judicata, not (as the District
Court concluded) Lee I, II and III.
No doubt the courts should from time to time
impose sanctions and award attorneys’ fees upon
frivolous appeals. For example, if an attorney appealed
from a summary judgment stating that the only issue
on appeal was whether the findings of fact below were
“not clearly erroneous,” etc., the appeal would be
frivolous - there being no findings of fact at all. This
would be an appellant’s equivalent of what the Fifth
Page 17
§
3
H
Circuit did in affirming Lee II and Lee III without.
opinion, under Local Rule 47.6.
Admittedly the awarding of sanctions, costs and/or
attorney’s fees against litigants could ultimately have
the effect of quieting litigation, even where res judi-
cata would not. Petitioner however deeply regrets to
see a United States Court of Appeals resort to such a
solution. Petitioner submits that in so doing, the Court
of Appeals harms the courts far more than petitioner.
CONCLUSION
The best that can be said of the Lee cases is that
they are unpublished, and lie in relative obscurity.
This is also the worst that can be said of them. Over a
ten-year period, a clear precedent (the as_ yet
unmentioned Brewton Lumber Co. case, which has
enjoyed the popularity of a leper at a health spa) has
been avoided but not overrruled, and long established
principles of res judicata and prescription have not
been followed - in a series of cases that as a practical
matter are as secret as if they were classified
government documents. The cases culminate in the
imposition of attorney’s fees against the attorney
refusing to forget the matter.
Petitioner submits that, while the Lee cases will
play little role as precedent among attorneys, they will
(if certiorari is denied) become established precedent,
if only informally, at the courts of appeal. Denial of
certiorari will be understood as meaning the course of
action followed in the Lee cases is a permissible
manner of disposing of litigation.
Petitioner could at this point shrug off the entire
matter, but feels his duty to the courts themselves
compel him to bring the matter to this Court’s
attention. A writ of certiorari should issue to review
the judgment of the Fifth Circuit.
Page 18
ee ee
May 1, 1986.
Respectfully submitted,
nd Go
Robert B. Eubank
Page 19
Page 20
APPENDICES
Appendix A
Brewton Lumber Co. Case
IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
CIVIL ACTION
NO. 14,680
L.L. BREWTON LUMBER COMPANY, INC.
versus
CONTINENTAL CAN COMPANY, INC.
MESSRS.
FOR PLAINTIFF Hiram J. Wright
P. O. Box 626
Winnfield, Louisiana 71483
FOR DEFENDANT William H. Baker
Holloway, Baker, Culpepper
& Brunson
Post Office Box E
Jonesboro, Louisiana 71251
SCOTT, JUDGE:
This is an action to annul and cancel an instrument
styled “Contract for Sale and Purchase of Timber and
Land Lease” executed by Louisiana Development Com-
pany, Inc., Lessor, in favor of Mansfield Hardwood
Lumber Company, Lessee, dated September 9, 1950,
and covering approximately 1360 acres of land in Winn
Parish, Louisiana, Plaintiff, L. L. Brewton Lumber
Company, Inc., (hereinafter referred to as “Brewton’’),
is the successor in title of the original lessor, Louisiana
Development Company, Inc. and Continental Can
Company, Inc. (hereinafter referred to as
‘“‘Continental’’), is the successor in title to the original
lessee, Mansfield Hardwood Lumber Company.
The agreement in question provides for the sale of
timber and then provides further for a lease for the
sole purpose of cutting and removing existing timber
and for the growing, cutting and removing of timber
during the term of the lease or any renewal or extension
thereof. (Emphasis supplied). The specific pertinext
nrovisions are the following:
“2. As a part of the consideration for this
agreement, Seller-Lessor leases and lets and by
this act does lease and let unto the Buyer-
Lessee, its successors and assigns, to the extent
herein provided, and subject to the terms and
conditions hereof, the real estate hereinabove
first described for a term of nine (9) years
from the date hereof for the purposes herein
expressed, and hereby grants to Buyer-Lessee,
its successors and assigns, the right and option
to make successive extensions or renewals of this
lease for a term of nine (9) years each upon the
conditions herein set forth, provided, that this
lease may not be extended beyond a date ninety-
nine (99) years from the date hereof. In order
to renew this lease, Buyer-Lessee shall give
written notice to Seller-Lessor of its intention
to do so before the expiration of each succes-
sive nine-year term.
3. Buyer-Lessee may successively renew or ex-
tend this lease for successive nine year terms by
giving Seller-Lessor written notice of its inten-
tion to do so and by paying to Seller-Lessor on
or before the date of the expiration of each nine
year term an amount equal to the real property
Appendix A, Page 2
|
taxes and local assessments which Seller-Lessor
has paid on the land described in this lease
during the nine years immediately preceding the
expiration of such nine year term.
Seller-Lessor shall notify Buyer-Lessee at least
thirty days prior to expiration of each nine year
term that the lease will expire unless renewed
and at the same time advise as to the amount of
the necessary renewal payment. If such notice
is not given, then Buyer-Lessee shall have
thirty days after Seller-Lessor gives such notice
in which to give notice of intent to renew and
to make the payment herein provided for.
4. During the term of this lease or any renewal
or extension thereof, as herein provided, Buyer-
Lessee shall have the right to remove standing
Or growing timber, wood and forest products
from the leased premises; ...
6. The Buyer-Lessee, upon the execution of
this instrument, has paid to the Seller-Lessor
the sum of Twenty Thousand and No/I00
(20,000.00) Dollars in cash, and other good and
valuable consideration, the receipt of which is
hereby acknowledged and a full acquittance is
granted therefor; the same being paid as con-
sideration for the sale of the timber and for this
lease, as well as for the options to renew and all
other rights hereby granted to Buyer-Lessee.
* ¢ #
(h) Each Seller-Lessor warrants the title to the
timber, wood and other forest products herein
leased only so far as the interest owned by each
Seller-Lessor, but it is agreed that in the event
of eviction of the Buyer-Lessee from any por-
tion of said land on account of failure of title
to any portion thereof, that the obligation of
the Seller-Lessor under his warranty shall be
limited to the refund of the proportionate part
received by him in cash of the sum of Fifty
and No/100 ($50.00) Dollars per acre on the
Appendix A, Page 3
lands to which title fails or from which Buyer-
Lessee is evicted, at the time of such eviction
or title failure.” (Emphasis supplied).
In the first hearing this Court did not consider the
validity of the 1950 contract as a timber sale with a
stipulated term for removal. This question was not
before the Court, since plaintiff made no demand for
timber cut before 1967. No party has claimed that the
1950 contract was not a valid sale agreement. However,
this Court did consider the validity of the agreement as
a lease and, for reasons stated in that opinion, held the
agreement to be invalid as a lease. The Court of Ap-
peals reversed in part, holding that the agreement was
valid as a lease agreement for the original nine year
term thereof, “the basic lease,” and remanded “for
consideration of the undisposed of issues.”
This agreement, by its own terms, is not a 99 year
lease. It provides for a nine year lease, with options to
renew for a term of nine years each, not in excess of
ninety-nine (99) years from the date of the instrument.
The Court of Appeals, in its interpretation of the
agreement in question, found that the $20,000 consi:d-
eration was paid for the sale of the timber, the initial
nine year term of the lease, and the options to renew
the lease. It also found the rent or consideration for
each nine year renewal period to be an amount equal to
the real property taxes and local assessments Seller-
Lessor had paid on the land during the nine years im-
mediately preceding the expiration of such nine year
term. Therefore, the issue now before this Court is
whether or not this is a valid rent or consideration un-
der Louisiana law.
The Civil Code of Louisiana spells out the require-
ments for a valid lease in the following articles:
Appendix A, Page 4
Art. 2669: Lease or hire is a synallagmatic
contract, to which consent alone is sufficient,
and by which one party gives to the other the
enjoyment of a thing, or his labor, at a fixed
price.
Art. 2670: To the contract of lease, as to that
of sale, three things are absolutely necessary,
to-wit: the thing, the price and the consent.
Art. 2671: The price should be certain and de-
termined and should consist of money.
Art. 2674: To let out a thing is a contract by
which one of the parties binds himself to grant
to the other enjoyment of a thing during a cer-
tain time, for a certain stipulated price which
the other binds himself to pay him.
Under the provisions of Article 2464 of the code in
the amount of the rent must be serious, that is the
amount of the rent cannot be out of all proportion to
the value of the lease.
The landmark decision in Louisiana on the doctrine
of serious consideration is Murray v. Barnhart, 117 La.
1023, 42 So. 489 (1906). In considering the validity of
the lease before it the Louisiana Supreme Court stated:
““At common law ‘the slightest consideration is
sufficient to support the most onerous obliga-
tion. The inadequacy, as has been said, is for
the parties to consider at the time of making
the agreement, and not for the court when it is
sought to be enforced.’ 9 Cyc. 365; A. & E. E.
vol. 6., p. 694. But under our law the consid-
eration ‘must be serious:’ ‘it must not be out of
all proportion with the value of the thing.’ Ar-
ticle 2464, Civ. Code. That article has special
reference to the price of a sale, but the princi-
ple it involves is not peculiar to sales. It is a
general principle of the civil law, and as old as
the civil law itself.”
Appendix A, Page 5
Another case involving the validity of a lease in the
city of Monroe is Northeast Louisiana Detachment of
Marine Corps League v. City of Monroe, 253 So. 2d 107
(1971) in which the Louisiana Court of Appeals, Second
Circuit, stated, as follows:
‘“A jease is a synallagmatic contract by which
one party gives to the other the enjoyment of a
thing ‘at a fixed price.’ LSA Civil Code Article
2669. Three elements are essential to a valid
lease - the thing, the price and the consent.
LSA Civil Code Article 2670. Article 2671 pro-
vides that the price should be ‘certain and de-
terminate’ and Article 2674 requires a ‘certain
stipulated price.’ Article 2464 sets forth the
essential elements of the price of a sale and re-
quires that the price must be ‘certain,’ ‘fixed
and determined’ and, most _ significantly,
‘serious’ and ‘not to be out of all proportion
with the value of the thing.’ The civil law
doctrine embodied in Article 2464 applies to all
other contracts as well as to sales. Blanchard v.
Haber, 166 La. 1014, 118 So. 117 (1928).”
The renewal periods or extensions of the lease are
extremely valuable to the lessee. The agreement covers
1360 acres (only as undivided 3/5 interest in 260 acres
thereof). In paragraph 13 of the Stipulation, defendant
admits it cut in 1951 and 1952 the following amounts of
timber:
Pine Saw Logs 115,062 board feet
Hardwood Law Logs 9,201 board feet
Pine Pulpwood 34.97 cords
Hardwood Pulpwood 17.44 cords.
It further admits in Paragraph 15 that it has contin-
ued to cut timber on the land up until 1969, but has no
records showing the amount of timber cut. The
amount of timber situated on these tracts, as of the
date of trial, is stipulated (Par. 8 & 9) to be the fol-
lowing:
Appendix A, Page 6
1100 Acre 260 Acre
Pine Saw Logs (board fect) 1,470,720 1,218,260
Hardwood Saw Logs (board feet) 88,560 84,240
Pine Pulpwood (cords) 7,530 340
Applying the stipulated present day stumpage val-
ues (Stipulation p. 10) to these figures, the value of the
lease for the nine year period beginning 1968 is $178,120
($113,400 on the 1100 acre tract and $64,720 on the
balance). The ordinary timber lease would provide
that the lessor receive as rent a reasonable percentage
of the monetary return from the timber cut. This lease
provides no such rent or similar payment to the Lessor.
Lessor will receive nothing from the products of the
land, in money or in kind.
Certainly it is contemplated under the doctrine of
serious consideration that the Lessor realize some profit
from the lease in the form of rent. However on the
face of this agreement the Lessor is guaranteed a loss.
The only rent stipulated is the reimbursement of taxes,
without interest, 9, 8, 7, 6, 5, 4, 3, 2 and 1 years after
the Lessor has paid them. Under this type of arrange-
ment no profit to the Lessor is conceivable. Further-
more, the Lessor is permitted to occupy and use the
land for a lesser sum than if he were the fee owner.
To illustrate these facts, in the first nine year renewal
period of the lease, the Lessee paid only $2,728.48 in
rent while the owner was paying $4,022.82 in current
taxes and assessments. Surely this cannot be considered
serious consideration, even if there were no timber on
the property and the land was bare. Under no condi-
: As stipulated (Par. 11), timber on the property grows and has grown
approximately six (6%) per cent to seven (7%) per cent per year.
During a renewal period of 9 years the land would produce in natural
growth alone, without the expenditure of one single dime by Conti-
nental, additional growth of approximately $96,183 to $112,212.
Appendix A, Page 7
tions can rent, consisting solely of the reimbursement
of taxes, be considered serious consideration as con-
templated by Louisiana law.
The term of the original lease having expired, there
being no valid provisions for the extension or renewal
thereof, judgment will be granted cancelling and eras-
ing the 1950 lease agreement from the public records
and reserving plaintiff's right to sue for damage.
Formal judgment should be submitted for execution
in compliance with Rule 9(e) of this Court.
THUS DONE AND SIGNED, in Chambers, at
Alexandria, Louisiana, on this 8th day of December
1972.
Nauman S. Scott
UNITED STATES DISTRICT JUDGE
Appendix A, Page 8
Appendix B
Lee Il
IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
LEE LUMBER COMPANY : CIVIL ACTION
-vSs- : NO. 77-1097
INTERNATIONAL PAPER COMPANY
e*se@eeeeeeeeseese eee nesee eee ees
RULING ON MOTION
This matter is presently before us on a motion for
summary judgment under Rule 56 filed by defendant
International Paper Company (hereinafter ‘“Interna-
tional”). Jurisdiction is based on diversity of
citizenship. 28 U.S.C.A. Sec. 1332.
The pleadings and exhibits establish the following
facts beyond dispute. On June 1, 1946 plaintiff Lee
Lumber Company, Ltd. (hereinafter “Lee Lumber’)
leased approximately 18,000 acres of timber land lo-
cated in the Parishes of Rapides, Grant and Avoyelles
to International. The lease provided for an annual
rental payment of $1,400, payable in January. The
lease term was for 61 years and 5 months, commencing
January 1, 1945.
On September 18, 1973 Lee Lumber filed suit in
the Ninth Judicial District Court, Parish of Rapides,
State of Louisiana, alleging that the aforementioned
lease was a nudum pactum and void ab initio on several
grounds: First, tne lease contained a potestative condi-
tion in that the lessee had the unilateral right to cancel .
the lease; second, the lease lacked serious consideration
since the annual rental amounted to approximately 7.7
cents per acre whereas the potential commercial timber
growth was valued at $5 per acre at the time the lease
was entered; third, the rental payments were lesionary
since they were less than one-half the value of the
rights granted under the lease. It was also alleged that
International had not paid the taxes as obligated by the
lease. Lee Lumber prayed for the following relief:
That the lease be declared null and void; that the
recordation of the lease be cancelled; and that it be
placed in full possession of the land, free and clear of
the lease.
The trial court sustained International’s peremptory
exception of prescription. The Second Circuit Court of
Appea! affirmed this ruling. Lee Lumber Co., Ltd. v.
International Paper Co., 321 So.2d 42 (1975). At the
outset the Court of Appeal rejected Lee Lumber’s
contention that the unilateral right of the lessee to
cancel the lease was a potestative condition under the
Louisiana Civil Code. The Court then found that the
action to cancel the lease for lack of serious considera-
tion had prescribed under either Louisiana Civil Code
art. 3542, which provides that an action for nullity or
rescision of cuntract prescribes in 5 years, or Louisiana
Civil Code art. 2221, which provides that an action for
nullity or rescision of an agreement prescribes in 10
years whenever a shorter period is not applicable. The
Court then determined that the doctrine of lesion was
not applicable and, in any event, the action for lesion
prescribed in 4 years under Louisiana Civil Code arts.
1862 and 1867. However, the Court found that the
cause of action based on the alleged failure of Interna-
tional to pay the annual rentals and taxes had not pre-
scribe since this obligation was a continuing one. The
issue was remanded to the trial court for determination
of whether the failure of International to perform its
Appendix B, Page 2
rental obligations gave Lee Lumber cause to dissolve
the lease.
On remand the trial court held that Lee Lumber
was equitably estopped from cancelling the lease be-
cause of International’s failure to pay or timely pay the
taxes as agreed. The Court of Appeal agreed. Lee
Lumber Company, Ltd. v. International Paper Co., 345
So.2d 212 (La.App. 3rd Cir. 1977), writ denied 347
So.503. In the lease entered into on June 1, 1946, Lee
Lumber explicitly agreed to pay the taxes assessed
against the land and it was implicit that International
would pay the taxes assessed against the timber. In
1950 the lease was amended to provide that Interna-
tional would pay the taxes assessed against both the
land and timber to the extent they were in excess of
the $1400 annual rental upon Lee Lumber’s submission
of tax receipts showing payment of taxes for the year
currently due. Lee Lumber alleged that Irternational
had failed to perform its obligations in t~/o respects,
viz., that it did not pay any of the taxes for the period
1946 to 1950 and beginning in 1951 International made
payments for taxes paid by Lee for the previous year
rather than those for the year currently due. As to the
non-payment of taxes the record established that the
taxes were always assessed in the name of Lee Lumber
and Lee Lumber never made any demands for pay-
ment. Concerning the late payment of taxes the Court
found that the record indicated that Lee Lumber had
always accepted the payments after the date they were
due and never made any demand to the contrary. The
Appellate Court concluded that the trial court was
correct in holding that Lee Lumber was equitably
estopped from demanding the cancellation and void-
ance of the lease and stated:
“As in this case, where a lessor, by his conduct
- no demand for taxes during the years 1946 to
1950; accepting of rental payments for the years
1951 thru 1973, after the date on which they
Appendix B, Page 3
were due - creates a custom by which the lessee
is led into a false sense of security that it has
complied with its obligations as lessee, the
lessor thereby waives his rights to cancel the
lease and is estopped from doing so.” J/d. at
214.
On September 30, 1977 Lee Lumber filed the in-
stant action seeking a declaratory judgment that the
lease is null and void and declaring it to be entitled to
immediate possession of the 18,000 acres. In addition,
plaintiff seeks an injunction restraining defendant from
entering the land and restitution for any timber cut by
defendant.
In its motion for summary judgment International
hes raised defenses of res judicata, prescription and
equitable estoppel. For the reasons set forth below, we
hold that the plaintiff's action has prescribed under
arts. 3542 and 2221 of the Louisiana Civil Code.
Plaintiff has asked this court to declare a lease en-
tered into over thirty years ago null and void. Plaintiff
alleges in his complaint that the lease is void under
Louisiana law because it contains a potestative condi-
tion, lacks serious consideration and is uncertain as to
object price and term. In its complaint plaintiff alleges
that the action for declaratory judgment is based on
four underlying causes of action, to wit: (1) a pos-
sessory action; (2) an action to quiet title; (3) an action
for recovery of a thing not due; and (4) an action for
eviction. The complaint also states that all of the un-
Appendix B, Page 4
derlying causes of action are based on the invalidity of
the lease.?
It is well settled that the nature of the basic action
determines the appropriate prescriptive period. See,
e.g. Giroir v. Dumesnil, 184 So.2d 1 (La. 1966), and
Giuffria Realty Co., Inc. v. Kathman-Landry, Inc., 173
So.2d 329 (La.App. 4th Cir. 1965).
In Giuffria the piaintiff sold some property to a
third party in 1927 who subsequently sold the property
to defendants in 1947. The plaintiff brought an action
to remove cloud from title contending that the 1927
transfer was invalid for various reasons, that it should
be decreed the owner of the property and that various
notarial acts transferring the property be cancelled
from the public record since they created a cloud on its
title. In spite of the fact that plaintiff had brought his
action as one for the removal of a cloud from title, the
court determined that it was in reality an action seek-
ing to nullify or rescind the 1927 transaction. In
finding that the trial court had properly maintained the
defendant’s defense of prescription the court stated:
“Prescription to apply to a cause of action is
determined by the nature of the action. Herein,
since the action is one of nullity or rescision,
For example, Paragraph 12 of the complaint alleges:
CAUSE OF ACTION FOR RECOVERY OF THING NOT DUE
(a) Under Louisiana law, plaintiff, having surrendered to defendant a
thing (the 18,000 acres and timber cut from them) which was not due,
because of the invalidity of the lease, has a cause of action to recover it;
(b) The only claim defendant has to the retention of the 18,000 acres
of timber land, and timber cut from such lands, or the proceeds thereof,
is the 1946 lease.
(c) The lease, for the reasons noted above, is void under Louisiana law.
Appendix B, Page 5
the ten year prescription of LSA-C.C. art. 2221.
would apply.”
Plaintiff has asked this court to declare the 1946
lease invalid. All of the so-called underlying causes of
action are predicated on the alleged invalidity of the
lease. Obviously the plaintiff has really brought an
action to rescind or nullify a lease. As mentioned
above, the nature of the action determines the appro-
priate prescriptive period. The prescription applicable
to an action for rescission or nullity of a lease is pro-
vided by either Article 3542 or Article 2221 of the
Louisiana Civil Code. Article 3542 provides, in perti-
nent part:
“The following actions are prescribed by five
years: that for the nullity or rescission of con-
tracts,” testaments or other acts.”
Article 2221 provides, in pertinent part:
“In all cases, in which the action of nullity or
of rescission of an agreement, is not limited to
a shorter period by a particular law, that action
may be brought within ten years.”
The lease that plaintiff seeks to have declared null
and void was entered into on June 1, 1946 - more than
27 years before plaintiff first attempted to nullify the
lease in state court. Without a doubt, plaintiff’s action
in this court to nullify and invalidate the lease has
prescribed long ago under the terms of either Article
2221 or 3542.
However, the prescriptive periods of Articles 3542
and 2221 apply only to relative nullities; they do not
. Needless to say, a lease is a contract. Article 2669 of the Louisiana
Civil Code provides: ‘‘Lease or hire is a synallagmatic contract, to
which consent alone is sufficient, and by which one party gives to the
other the enjoyment of s thing, or his labor at a fixed price.”
Appendix B, Page 6
run against absolute nullities. Fried v. Bradley, 52
So.2d 247 (La. 1950). Absolute nullities are those that
are in derogation of public order and good morals
whereas relative nullities are those established in the
interest of individuals. The theory behind the pre-
scription applicable to an action for nullity or rescis-
sion is that a person is presumed to ratify the defects
in an act when he does nothing about them over a pe-
riod of time. Absolute nullities are insusceptible of
ratification because the “ratification would itself be
tainted with the vices reprobated in the act sought to
be ratified.” Jd. at 252.
Herein the defects in the lease are alleged to be the
lack of serious consideration, the presence of a potes-
tative condition and uncertainty of object, term and
price. Both lack of adequate consideration, Giuffria
Realty Co., Inc. v. Kathman-Landry, Inc., supra, and
uncertainty of object, price and term, Prestridge vy.
Humble Oil & Refining Co., are considered to be rela-
tive nullities and subject to ratification.
We need not consider whether the presence of a
potestative condition constitutes an absolute nullity
because we find that the lease does not contain one.
The potestative condition alleged to exist herein is the
unilateral right of the lessee to cancel the lease. This
contention has already been rejected by the courts of
Louisiana. McCain v. Continental Can Co., 299 So.2d
454 (La.App. 2d Cir. 1974), writ refused 302 So.2d 308;
Thibodeaux v. Boeuf Land Co., Inc., 303 So.2d 576
(La.App. Ist Cir. 1974).
Plaintiff argues that he can avoid the prescriptive
periods applicable to actions for nullity or rescission by
bringing his action as one for declaratory judgment
based on underlying causes of action (the possessory
action, the action to quiet title, the action of eviction,
and action for recovery of a thing not due) that he al-
Appendix B, Page 7
leges have not prescribed. Plaintiff maintains that de-
fendant must respond to the above action by asserting
his rights under the lease by a counter-claim or sepa-
rate action. Plaintiff's scenario then contemplates that
he would respond by asserting an action for nullity or
rescission which would not be barred by prescription
because Louisiana Code of Civil Procedure art. 424
provides that a prescribed cause of action may be
raised as a defense.
We find plaintiff's argument unpersuasive because
it is not supported by Louisiana jurisprudence and
more fundamentally, because its acceptance would re-
sult in an emasculation of the Louisiana prescription
law in the area of nullity and rescission.
Plaintiff cites Giroir v. Dumesnil, 184 So.2d 1 (La.
1966), for the proposition that in the case of an action
for declaratory judgment the applicable period of pre-
scription is that period applicable to the causes of ac-
tion underlying the action for declaratory judgment.
This does not present any obstacle to our holding that
plaintiffs action is barred by either Article 3542 or
Article 2221. As already indicated above, we consider
the basic action underlying plaintiff's action for
declaratory judgment to be that of nullity or rescission
on which the prescriptive period began to run the day
the lease was entered into.
In support of its contention that the underlying
causes of action have not prescribed, plaintiff asserts
that the action to quiet title and the possessory action
accrue as long as the lease, i.e., the cloud on the title
or the disturbance in possession remains in existence.
The cases of Dixon v. American Liberty Oil Co., 77
So.2d 533 (La. 1954), Green v. Chamberlain, 60 So.2d
120 (La.App. Ist Cir. 1952), and Chauvin vy. Kirckhoff,
194 So.2d 805 (La.App. Ist Cir. 1967), are cited in
support. However, these cases merely hold that the
Appendix B, Page 8
continued existence of a lease on the public records, as
well as the initial recordation, constitute a cloud on the
title or disturbance in possession. None of the cited
cases were concerned with the applicability vel non of
articles 3542 or 2221.
Plaintiff also asserts that an action for the recovery
of a thing not due does not accrue and the prescription
does not begin to run until the time of the repudiation
of the void agreement. Plaintiff cites the case of La-
garde v. Dabon, 98 So. 744 (La. 1923) in support.
However, that case did not involve a situation where a
party to a contract was attempting to have it invali-
dated or rescinded. Rather it was concerned with the
situation where a party to a partnership that the court
considered invalid because it was not reduced to writ-
ing sought to recover assets she had invested in the
partnership from the heirs of the other partner.
Plaintiff cites no authority in support of his con-
tention that he can avoid the application of the
Louisiana Civil Code articles governing the prescription
applicable to actions for nullity or rescission by bring-
ing an action for eviction.
If we accepted plaintiff’s argument, then a party to
a contract made years ago that no longer considered the
contract economically advantageous could simply search
the contract for some technical error and then bring a
declaratory judgment based on the underlying causes of
action as specified by plaintiff. Quite plainly, plain-
tiff’s argument files in the face of articles 222! and
3542 and the basic policy of the law they serve.
“The genius of our law does not favor the
claims of those who have long slept on their
rights, and who, after years of inertia, convey-
ing an assurance of acquiescence in a given
state of things, suddenly wake up at the wel-
come vision of an unexpected advantage and
invoke the aid of the courts for relief, under
Appendix B, Page 9
the effect of a newly discovered technical error |
in some ancient transaction or settlement.”
Lafitte, Dufilho & Co. v. Godchaux, 35 La.Ann.
1161, 1163 (1883).
Accordingly, the defendant’s motion for summary
judgment is granted.
A form of judgment consistent with this opinion
should be submitted within ten days of date.
Aiexandria, Louisiana, this the 7th day of Novem-
ber, 1978.
man t
UNITED STAT
Appendix B, Page IC
DO NOT
PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 79-1309
LEE LUMBER COMPANY, LTD.,
Plaintiff- Appellant,
versus
INTERNATIONAL PAPER COMPANY,
Defendant- Appellee.
Appeal from the United States District Court for the
Western District of Louisiana
(May 15, 1980)
Before GODBOLD, SIMPSON and THOMAS A.
CLARK, Circuit Judges.
PER CURIAM: AFFIRMED. See Local Rule 21.!
1 See N.L.R.B. v. Amalgamated Clothing Workers of America, 1970,
430 F.2d 966.
Appendix B, Page 11
Appendix C
Lee Ill
IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
ROBERT B. EUBANK, Individually
and on behalf of all other
shareholders of Lee Lumber Co.,
Ltd.
-vS- : CIVIL ACTION NO. 82-1446
INTERNATIONAL PAPER
COMPANY
RULING
The present action before this court is a Motion to
Dismiss for failure to state a claim upon which relief
can be granted by plaintiff, Lee Lumber Company
(hereinafter “Lee”’) against defendant, International Pa-
per Company (hereinafter “‘International’’). We con-
verted the motion into one for summary judgment
pursuant to Rule 56, Federal Rules of Civil Procedure.!
Specifically, this action arises out of a lease agreement
between Lee Lumber Company as lessor and Interna-
tional as lessee, involving certain immovable property
located in the parishes of Rapides, Grant and
By Minute Entry on December 1, 1982, we converted defendant's
12(b)(6) motion to one for summary judgment pursuant to rule 56,
Federal Rules of Civil Procedure.
Avoyelles, constituting approximately 18,000 acres.”
Suit was fi'ed in this court on June 9, 1982 as a share-
holder’s derivative action by Robert Eubank, on behalf
of all shareholders of Lee Lumber Company against
International Paper Company. Plaintiff has asserted a
possessory cause of action, alleging that its possession
was disturbed as a result of the purported lease be-
tween Lee and International Paper Company. Plaintiff
has asserted a possessory cause of action, alleging that
its possession was disturbed as a result of the purported
lease between Lee and International that was recorded
by International on June 26, 1946. Consequently, Lee
Lumber Company is seeking to be placed in possession
of the land in question.
There have been several lawsuits filed regarding the
particular property in question, between the same par-
ties. The first suit, entitled Lee Lumber Company vy.
International Paper Company, No. 88-339, was filed on
September 18, 1973 in the Ninth Judicial District
Court, Rapides Parish, Louisiana. Lee Lumber sought
to have a certain lease declared null and void,® and to
be placed in possession of the land. The trial court
sustained defendant’s peremptory exception of pre-
scription. Thereafter, Lee Lumber appealed to the
Court of Appeal, Third Circuit, State of Louisiana.
2 By o prior agreement, Lee had sold all of the timber on the land to
International. The primary purpose of the lease was future use of the
land in growing timber. The lease was entered into on June 1, 1946,
and International took possession on that date. The lease term was for
61 years and 5 months.
: This is the same lease in question presently before the court, exe-
cuted in 1946.
* The causes of action at the trial court level were: (a) potestative
condition; (b) 5 and 10 year prescription, Civil Code 3542, Civil Code
2221; (c) lack of serious consideration; {d) lesion beyond moiety; (¢)
rent and taxes not paid.
Appendix C, Page 2
Lee Lumber Co. v. Internatiunal Paper Co., 321 So.2d
42 (La.App. 1976), writ refused, 324 So.2d 423 (La.
1976). The Court of Appeals affirmed in part, re-
versed in part, and remanded.® Subsequently, this de-
cision was affirmed by the Court of Appeal, Third
Circuit, State of Louisiana. Lee Lumber Co. v. Interna-
tional Paper Co., 345 So.2d 212 (La.App. 1977), writ
refused, 347 So.2d 503 (La. 1977).
Thereafter, on September 30, 1977, suit was filed
before this court entitled Lee Lumber Co. v. Interna-
tional Paper Co., No. 77-1097-A. Lee Lumber sought
a declaratory judgment that a lease was void, and
sought possession.® The suit was disposed of by sum-
mary judgment in which we held that the main cause
of action, that of nullity and rescission of a lease had
prescribed.” Our ruling was affirmed by the Fifth
Circuit Court of Appeals. Lee Lumber Co. v. Interna-
tional Paper Co., No. 79-1309.
Robert Eubank then filed the present action before
this court asserting the possessory cause of action.
Louisiana Code of Civil Procedure defines posses-
sory action in Article 3655:
““A possessory action is one brought by the pos-
sessor of the movable property or of a real right
to be maintained in his possession of the prop-
erty or enjoyment of the right when he has
. The issue as to a contractual provision in the lease for payment of
taxes was remanded. The trial court held that plaintiff was estopped
from raising this issue and held for International Paper Company.
© The underlying causes of action were: (a) possessory action; (b) ac-
tion to quiet title; (c) recovery of a thing not due; (d) eviction; (e)
potestative condition; (f) uncertainty of thing leased, price and term;
(g) absence of serious consideration.
7 Judgment signed December 15, 1978.
Appendix C, Page 3
been disturbed, or to be restored to the posses-
sion or enjoyment thereof when he ha: been
evicted.”
Furthermore, several requisites must be met in
order to be able to maintain the possessory action.
Article 3658, Louisiana Code of Civil Procedure, reads:
“To maintain the possessory action, the posses-
sor must allege and prove that: (1) he had pos-
session of the immovable property or real right
at the time the disturbance occurred; (2) he and
his ancestors in title have such possession qui-
etly and without interruption for more than a
year immediately prior to the disturbance, un-
less evicted by force or fraud; (3) the distur-
bance was one in fact or law, as defined in Ar-
ticle 3659; and (4) the possessory action was in-
stituted within a year of the disturbance. See
ime v. Collins, 365 So.2d 608 (La.App.
| las
The prescriptive period relative to the possessory
action is found in Civil Code art. 3456:
“But this, which is called the possessory action,
must be commenced by the possessor within a
year, reckoning from the time when he was
disturbed; for if he leaves the person eviciing
him in possession for one year, without com-
plaint, he shall lose his possession, whatever ap-
parent right he hay have had to it, and shall be
driven to his action for the ownership of the
property.”
The issues we are concerned with are whether or
not the possessory action asserted by Lee Lumber
Company was brought within one year of the alleged
disturbance, that being the recordation of the lease by
International in 1946 and whether or not there has been
Appendix C, Page 4
—
nap ante Clete ae Pama
eR ia Ray en aR RE Re nile
ee id
a “disturbance.”® Lee Lumber argues that the
prescriptive period is continuous throughout the
disturbance,® and therefore the action does not have to
be brought until one year after disturbance. La.C.C.
art 3456. However, a lessor and a lessee may not
ordinarily assert the possessory action against each
other. Their respective rights are governed by the
lease. Trinidad Petroleum Co. y. Pioneer Natural Gas,
381 So.2d 808 (La. 1980), rehearing denied, April 8,
1980. See also Developments in the Law, 1979-1980
Mineral Rights, 41 La.L.Rev. 344. Only in instances
when it is manifest that a lease is void can a lessor
assert the possessory cause of action. Houssiere
Laireille Oil Co. v. Jennings-Heywood Oil Syndicate,
38 So. 932 (La. 1905). Quoting the court:
“In a suit, if the lessors wish to avail them-
selves, as in this case, of their right as owners,
and the defendants meet their action by plead-
ing that they are in possession under a valid
lease, and sustain their plea to the extent suffi-
cient at least to show that the lease is not void,
the plaintiffs are not then in a position to sus-
tain their possessory action. Supra at p. 934.”
Under a valid lease agreement, lessor and lessee
cannot possess adversely to one another. Rather, a
“predial lessee is considered as possessing for his lessor
a Eee. att. S656.
In plaintiff’s earlier suit before this court, our rul-
ing granting defendant’s Motion for Summary Judg-
ment was dispositive of the entire claim. We held that
the lease in question between the parties was not sub-
ject to attack because the cause of action for nullity or
8 All other requirements of Article $658, La.C.C.P., are not in dispute.
® Citing Dickson v. American Liberty Oil Co., 77 80.2d 533 (La. 1954);
Green v. Chamberlain, 60 So.2d 120 (La.App. 1967); Chauvin v.
Kirchoff, 194 80.24 805 (La.App. 1967).
Appendix C, Page 5
rescission of a lease had prescribed.!° That being ‘the
case, International Paper Company, as lessee, is pos-
sessing under a valid lease agreement.'* Therefore,
there being no disturbance, the possessory action,
which plaintiff states is his only cause of action,’ is
not a proper action before us. Therefore, defendant’s
Motion for Summary Judgment is granted, as this suit
is without any genuine issue of material fact.
DONE AND SIGNED at Alexandria, Louisiana, on
this the 3rd day of February, 1983.
ott
United States District Judge
10 Cause of action was nullity of a lease and included the underlying
causes of action which were inter alia a possessory action.
i Assuming arguendo that the lease was void, then plaintiff would be
correct in his assertion that the action could be brought within one
year after the disturbance.
12 3.4 affidavit of Robert Eubank filed December 13, 1982.
Appendix C, Page 6
IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN OISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
ROBERT B. EUBANK, Individually
and on behalf of all other
shareholders of Lee Lumber Co.,
Ltd.
-vS- : CIVIL ACTION NO. 82-1446
INTERNATIONAL PAPER
COMPANY
AMENDED RULING
In the court’s ruling on February 3, 1983 the first
sentence of the first paragraph as corrected should
read:
The present action before this court is a Motion to
Dismiss for failure to state a claim upon which relief
can be granted by defendant, International Paper Com-
pany (hereinafter “International”) directed to plaintiff,
Lee Lumber Company (hereinafter “‘Lee”’).
DONE AND SIGNED at Alexandria, Louisiana, on
this the 23rd day of February, 1983.
ott
United States District Judge
Appendix C, Page 7
DO NOT
PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 83-4112
ROBERT B. EUBANK, Individually
and On Behalf of All Other
Shareholders of Lee Lumber Company,
Plaintiff- Appellant,
versus
LEE LUMBER COMPANY, LTD.,
a Corporation, and
INTERNATIONAL PAPER COMPANY,
a Corporation,
Defendants- Appellees.
Appeal from the United States District Court for the
Western District of Louisiana
(October 27, 1983)
Before POLITZ, JOHNSON and WILLIAMS, Circuit
Judges.
PER CURIAM: AFFIRMED. See Local Rule 47.6.
Appendix C, Page 8
Appendix D
Lee IV
IN THE UNITED STATES DISTRICT COURT FOR
THIE WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
ROBERT B. EUBANK, Individually
and on behalf of all other
shareholders of “ee Lumber Co.,
Ltd.
-YS- : CIVIL ACTION NO. 83-2809
LEE LUMBER COMPANY, LTD.,
ET AL
RULING
This matter is now before us on a Motion for
Summary Judgment filed by the defendant, Interna-
tional Paper Company (IPC). In support of its motion,
IPC argues that res judicata bars the instant suit.
We agree.
There have been several actions filed regarding the
property in question in this lawsuit and the lease which
Eubank now seeks to have deciared null and removed
from the public records.
The first action, captioned Lee Lumber Company vy.
International Paper Company, Civil Action No. 88-339,
hereinafter referred to as “Lee I,” was filed on
September 18, 1973 in the Ninth Judicial District
Court, Rapides Parish, Louisiana. In that suit ‘the
plaintiff sought to have the lease declared null and
void and to be placed in possession of the property.
Lee I was dismissed on the grounds of prescription.
The trial court’s ruling was affirmed in Lee Lumber
Company v. International Peper Company, 345 So.2d
212 (La. App. 3rd Cir. 1977), writ denied, 347 So.2d
303 (La. 1977).
The second action was filed in this court on
September 36, 1977 captioned Lee Lumber Company v.
International Paper Company, Civil Action No. 77-
1097-A, and hereinafter referred to as “Lee II.” A
declaratory judgment was sought in that matter based
on four underlying causes of action, to-wit: (1) a pos-
sessory action; (2) an action to quiet title; (3) an action
for recovery of a thing not due; and (4) an action for
eviction. Summary judgment was granted in that ac-
tion because the underlying cause of action, that of
nullity or rescission of the lease, had prescribed. That
ruling was affirmed by the Fifth Circuit. Lee Lumber
Company v. International Paper Company, Civil Action
No. 79-1309.
The third action was filed in this court on June 9,
1982, captioned Robert B. Eubank, Individually and on
behalf of all other shareholders of Lee Lumber Com-
pany, Lid. v. International Paper Company, Civil Action
No. 82-1446-A, and hereinafter referred to as “Lee
Ill.” That matter was styled as a possessory action.
Summary judgment was also granted in Lee III for ba-
sically the same reasons as Lee II.
La. C.C. Art. 2286 sets forth the requirements of
res judicata:
“ . the thing demanded must be the same; the
demand must be founded on the same cause of
action; the demand must be between the same
Appendix D, Page 2
parties, and formed by them against each other
in the same quality.”
The term “the same cause of action” in Article
2286 is a mistranslation. The article should read “the
same cause.” R. G. Claitor’s Realty v. Juba:., 391 So.2d
394 (La. 1980).
In the complaint, the plaintiff, Robert B. Eubank
(Eubank), has asserted that this is an action to quiet ti-
tle and that no other cause of action is being asserted.
We find that there is no genuine issue of material
fact that the thing demanded in this suit is the same as
that which was demanded in Lee I, Lee II, and Lee III.
The plaintiff is seeking to have the lease, the 1950
amendment, and the timber sale declared invalid and to
have those documents removed from the public records
of Rapides, Grant and Avoyelles Parishes.
The plaintiff's assertion that the present suit is a
different cause of action’ does not make his cause in
this suit different from Lee I, Lee II or Lee III. “The
proper interpretation of Article 2286 requires a con-
sideration of the broader concept of cause at civil law
rather than the common law cause of action.” R. G.
Claitor’s Realty v. Juban, supra at p. 397; Mitchell vy.
Bertolla, 340 So.2d 287 (La. 1976); Sliman v. McBee,
311 So.2d 248 (La. 1975). We find that there is no
genuine issue of material fact that the plaintiff’s cause
Or ground on which the demand is founded in this
lawsuit is the same as the plaintiff’s cause in Lee I, Lee
II, and Lee III.
of
We find this assertion untrue. In Lee II the plaintiff stated that his
action for a declaratory judgment was supported by four underlying
causes of action, one of which was an action to quiet title.
Appendix D, Page 3
We also find that there is no genuine issue of ma-
terial fact that the parties in the instant suit are essen-
tially the same as in Lee I and Lee II; and exactly the
same as ‘in Lee III.
For the reasons stated above, we find that the
judgments in Lee I, Lez II, and Lee III are res judicata
and that the mover is entitled to summary judgment as
a matter of law. We need not discuss the prescription
issue as res judicata is dispositive of this matter.
We now turn to the matter of sanctions. The de-
fendant, IPC, has counterclaimed for an award of at-
torney’s fees and damages for what IPC has character-
ized as Eubank’s initiation of vexatious and harassing
litigation with no reasonable expectation of success
when view from the standpoint of a prudent legal ap-
proach and designed merely to cause IPC further effort
and expense in presenting a defense. IPC has reurged
its request for sanctions in this Motion for Summary
Judgment.
The request for sanctions is DENIED; however, this
matter, having been litigated several times, should not
appear in this court again. Valuable time and money
has been wasted and an unnecessary burden has been
placed upen this court by the plaintiff's persistence in
relitigating the same dispute. Any future attempt by
plaintiff to relitigate these matters will be filed at the
risk of whatever sanctions (inciuding but not limited to
dismissal, and an award of attorney’s fees and other
damages), deemed appropriate by this court.
It is hereby ORDERED that the Motion for Sum-
mary Judgment be GRANTED and that the defendant,
IPC, shall submit a judgment in accordance with this
ruling within ten (10) days of the signed date.
DONE AND SIGNED at Alexandria, Louisiana this
2ist day of June, 1985.
Appendix D, Page 4
Nauman §. Scott !
UNITED STATES DISTRICT JUDGE
Appendix D, Page 5
IN THE UNITED STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
ROBERT B. EUBANK, Individually
and on behalf of all other
shareholders of Lee Lumber Co.,
Ltd.
-vS- : CIVIL ACTION NO. 83-2809
LEE LUMBER COMPANY, LTD.,
ET AL
SUMMARY JUDGMENT
This cause having regularly come on for hearing on
the Motion for Summary Judgment filed by Defendant
herein, International Paper Company, on the 30th day
of January, 1985, Briefs and/or Memoranda of Au-
thority having been submitted by Counsel, oral argu-
ment having been presented by Counsel for Defendant
International Paper Company and for Plaintiff, in Open
Court, on March 18, 1985, the Court having considered
the law and the evidence, the law and the evidence
being in favor of Defendant-Mover, International Pa-
per Company, and for written reasons previously as-
signed, dated June 21, 1985, and filed herein, under
date of June 24, 1985:
IT IS THEREFORE ORDERED, ADJUDGED
AND DECREED that Defendant’s Motion for Sum-
mary Judgment be and it is hereby granted and that
there be Summary Judgment herein, in favor of De-
fendaut, International Paper Company, and against
Plaintiff, Robert B. Eubank, individually and on behalf
of all other Shareholders of Lee Lumber Company,
Appendix D, Page 6
Ltd., forever dismissing in its entirety the Complaint
filed herein by Plaintiff in this action, and denying all
demands of Plaintiff set forth therein, all at Plaintiff's
cost.
Subject to comments set forth in the Ruling of this
Court and written reasons previously assigned and filed
herein, the request of Defendant, International Paper
Company, for sanctions against Plaintiff is denied.
Judgment rendered on June 21, 1985 and signed at
Alexandria, Louisiana on this the Ilth day of July,
1985.
Nauman §. Scott
UNITED STATES DISTRICT JUDGE
Appendix D, Page 7
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 85-4509
Summary Calendar
ROBERT B. EUBANK,
Plaintiff-Appellant
VERSUS
LEE LUMBER COMPANY, LTD., ET AL.,
Defendants,
INTERNATIONAL PAPER COMPANY,
Defendant- Appellee.
Appeal from the United States District Court
For the Western District of Louisiana
(December 20, 1985)
Before GEE, RANDALL and DAVIS, Circuit Judges.
PER CURIAM:
Eubank appeals the dismissal of the fourth lawsuit
filed either as a derivative action for Lee Lumber
Company or directly for for Lee Lumber Company to
have declared invalid a lease between Lee and defen-
: Local Rule 47.5 provides: ‘The publication of opinions that have no
precedential value and merely decide particular cases on the basis of
well-settled principles of law imposes needless expense on the public
and burden on the legal profession.” Pursuant to that Rule, the court
has determined that this opinion should not be published.
Appendix D, Page 8
dant, International Paper Company, and regain posses-
sion of the property under !ease.
The first action was filed by Lee Lumber Company
in state court seeking to cancel a thirty-year old lease
covering some 18,000 acres of Louisiana timberland.
The district court dismissed the action as prescribed.
See Lee Lumber Company, Ltd. v. International Paper
Co., 321 So.2d 42 (La. App. 3d Cir. 1975) (aff'd in
part); 345 So.2d 212 (La. App. 3d Cir. 1977) (appeal
after remand). The second action (Lee //) was filed by
Lee Lumber Company in federal court. In Lee I]
plaintiff sought a declaratory judgment decreeing that
it was entitled to possession of the property in ques-
tion. our underlying theories of recovery were as-
serted in support of the claim for declaratory judg-
ment: a possessory action, an action to quiet title, an
action for the recovery of a thing not due, and an ac-
tion of eviction. The district court held that the claims
asserted in that action had prescribed and accordingly
dismissed the suit. We affirmed. Lee Lumber Co., Lid.
v. International Paper Co., No. 79-1309 (Sth Cir. May
15, 1980). The third action (Lee J//) was filed in fed-
eral court by Eubank, individually and on behalf of
other shareholders of Lee Lumber Company against
International Paper Company. A possessory action un-
der Louisiana law was asserted in that suit. The dis-
trict court also dismissed that action as prescribed and
we affirmed. Eubank v. Lee Lumber Co., Lid., No. 83-
4112 (Sth Cir., October 27, 1983), cert. denied, No. 83-
1918 (Oct. 1, 1984).
Plaintiff Eubank filed this action (Lee JV) as a
derivative action on behalf of the stockholders of Lee
Lumber Company. He characterized this action as one
“to quiet title and of no other cause of action whatso-
ever and specifically not of the ‘action of nullity or
recision.’ ” Because recovery on this theory was ad-
vanced by Lee in Lee // - and rejected by the court -
Appendix D, Page 9
the district court correctly dismissed Lee JV on grounds
of res judicata.
Although Eubank, as a shareholder of Lee Lumber
Company, instituted this suit as a derivative action on
behalf of the corporation, the action is nevertheless
considered the corporation’s action for purposes of res
judicata. Dana vy. Morgan, 232 F. 85, 91 (2d Cir.
1916); Sample v. Louisiana Oil Refining Corp., 162 La.
941, 111 So. 336 (1927).
We next consider appellee’s motion for attorney’s
fees and costs against the appellant for pressing a
frivolous appeal. Plaintiff's attempts to regain control
over Lee’s property as counsel for Lee and as a share-
holder have been in the courts for over ten years. As
outlined above, appellant was first denied possession of
his property by the Louisiana appellate courts in 1975.
Since that time he has filed three separate suits in
federal court seeking to regain control of the same
property. The precise issue in this appeal, whether Lee
was entitled to control of its property in an action to
quiet title under Louisiana law, was decided against
Lee in Lee I] in 1980. That determination is clearly
res judicata. R. G. Claitor’s Realty v. Juban, 391 So.2d
394 (La. 1980).
Appellant has no _ colorable argument under
Louisiana law to support his theory that Lee JV is not
precluded by the judgment rendered in Lee JJ. The
district court so held in a clear opinion. The appeal is
completely meritless and we conclude that appellees are
entitled to recover from plaintiff $2500 in attorney’s
fees plus costs.
AFFIRMED.
Appendix D, Page 10
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 85-4509
ROBERT B. EUBANK,
Plaintiff-Appellant,
versus
LEE LUMBER COMPANY, LTD., ET AL.,
Defendants,
INTERNATIONAL PAPER COMPANY,
Defendant- Appellee.
Appeal from the United States District Court for the
Western District of Louisiana
ON PETITION FOR REHEARING
(January 31, 1986)
Before GEE, RANDALL and DAVIS, Circuit Judges.
PER CURIAM:
IT IS ORDERED that the petition for rehearing
filed in the above entitled and numbered cause be and
the same is hereby denied.
ENTERED FOR THE COURT:
W, Eugene Davis
United States Circuit Judge
Appendix D, Page 11
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
NO. 85-4509
ROBERT B. EUBANK,
Plaintiff- Appellant,
versus
LEE LUMBER COMPANY, LTD., ET AL.,
Defendants,
INTERNATIONAL PAPER COMPANY,
Defendant- Appellee.
Appeal from the United States District Court for the
Western District of Louisiana
ON SUGGESTION FOR REHEARING EN BANC
(Opinion 12-20-85, 5 Cir., 198_, F.2d )
(February 4, 1986)
Before GEE, RANDALL and DAVIS, Circuit Judges.
PER CURIAM:
(x) Treating the suggestion for rehearing en banc as
a petition for panel rehearing, it is ordered that the
petition for panel rehearing is DENIED. No member
of the panel nor Judge in regular active service of this
Court having requested that the Court be polled on re-
hearing en banc (Federal Rules of Appellate Procedure
and Local Rule 35), the suggestion for Rehearing En
Banc is DENIED.
Appendix D, Page 12
( ) Treating the suggestion for rehearing en banc as
a petition for panel rehearing, the petition for panel
rehearing is DENIED. The judges in regular active
service of this Court having been polled at the request
of one of said judges and a majority of said judges not
having voted in favor of it (Federal Rules of Appellate
Procedure and Local Rule 35), the suggestion for Re-
hearing En Banc is DENIED.
ENTERED FOR THE COURT:
W, Eugene Davis
United States Circuit Judge
Appendix D, Page 13
Appendix D, Page 14
Appendix E
Affidavits of Messrs.
Chiarkas, aati aa and Eubank
ee
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
ROBERT B. EUBANK, Individually
and on behalf of all other
shareholders of Lee Lumber
Co., Ltd.
vs.
LEE LUMBER COMPANY, LTD. CIVIL ACTION
NO. 83-2809-A
vs.
INTERNATIONAL PAPER COMPANY
AFFIDAVIT
District of Columbia
United States of America
Before me, the undersigned Notary Public, person-
ally came and appeared Nicholas L. Chiarkas, who be-
ing first sworn by me did depose and testify as follows:
*“*My name is Nicholas L. Chiarkas. I am an at-
torney at law, and a member of the Alabama
and Pennsylvania Bars. I graduated from Tem-
ple University Law School in 1978. I am also a
graduate of Columbia University, The City
University of New York, and New York Uni-
versity, having received Ed.D., Ed.M., M.A.,
P.G.C., and B.S. degrees. I have been an attor-
ney for seven years. From 1979 to 1984, I was
professor of law at Cumberland Law School,
Birmingham, Alabama. I am presently the
Deputy Chief Counsel, U.S. Senate Permanent
Subcommittee on Investigations.
I have r2ad the court opinions in the following
cases: L.L. Brewton Lumber Co., Inc. v. Conti-
nental Can Co., Inc., 480 F.2d 923 (Sth Cir.
1972); Lee Lumber Co., Ltd. v. International Pa-
per Co., 321 So.2d 42 (La.App. 1976), 324 So.2d
423 (La.1976), 345 So.2d 212 (La.App. 1977),
347 So.2d 503 (La. 1977) (hereinafter “Lee I’’);
Lee Lumber Company, Ltd. v. International Pa-
per Co., US.D.C., W.D.La. No. 77-1097
(11/7/78), Sth Cir. No. 79-1309 (5/15/80)
(hereinafter “Lee II’’); Lee Lumber Company,
Ltd. v. International Paper Co., U.S.D.C.W.D.La.
No. 82-1446 (2/3/83), amended 2/23/83, 5th
Cir. No. 83-4112 (10/27/83) (hereinafter “Lee
III’); and the complaint filed in Lee Lumber
Co., Ltd. v. International Paper Co., U.S.D.C.,
W.D.La. No. 83-2809-A (hereinafter “‘Lee IV”’).
In my opinion:
Since both Lee I and Lee II were held to state a
cause of action of ‘nullity or rescission’ and
dismissed solely for that reason, neither Lee I
nor Lee II should be considered a bar to the
bringing of Lee IV. Lee IV states a cause of
action to quiet title, which was not prescribed
in either Lee I or Lee II.
Lee III is not a bar to the bringing of Lee IV,
because it was held to state the possessory cause
of action. Lee IV states a different cause of
action, the action to quiet title. This action (the
action to quiet title stated in Lee IV) has not
prescribed and does not prescribe so long as an
alleged cloud on the title remains of record.
Prescription of the action of ‘nullity or recis-
sion’ is not a bar to the bringing of another
cause of action such as that to quiet title, even
if arising from the same facts.
Appendix E, Page 2
It appears to me that the bringing of Lee IV is
clearly warranted by and in accordance with
existing law. And, so long as a lease remains
outstanding and the lessee claims performance
under it, the lessor may raise any objections the
lessor may have to the validity of the lease.”
Dated: March 7, 1985
Nicholas L. Chiarkas
Sworn to and subscribed before me the 7th day of
March, 1985.
Notary Public
Appendix E, Page 3
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
ROBERT B. EUBANK, Individually
and on behalf of all other
shareholders of Lee Lumber
Co., Ltd.
vs.
LEE LUMBER COMPANY, LTD. CIVIL ACTION
NO. 83-2809-A
vs.
INTERNATIONAL PAPER COMPANY
AFFIDAVIT
State of Louisiana )
Parish of Rapides _)
Before me, the undersigned Notary Public, person-
ally came and appeared James S. Gravel, who being
first sworn by me did depose and testify as follows:
“My name is James S. Gravel. I am a
practicing attorney at law, and a member of the
Louisiana Bar Association. I graduated from
the Louisiana State University School of Law in
1959. I have been a member of the Louisiana
Bar Association, and a practicing attorney, for
26 years.
I have read the court opinions in the following
cases:
L.L. Brewton Lumber Co., Inc. v. Continental
Can Co., Inc., U.S.D.C., W.D.La. No. 14680
(12/11/71), 480 F.2d 923 (Sth Cir. 1972)
(hereinafter “Brewton’’).
Appendix E, Page 4
Lee Lumber Co., Ltd. v. International Paper
Co., 321 So.2d 42 (La.App. 1976), 324 So.2d 423
(La. 1976), 345 So.2d 212 (La.App. 1977), 347
So.2d 503 (La. 1977) (hereinafter “Lee I’’).
Lee Lumber Co., Ltd. vy. International Paper Co.,
U.S.D.C., W.D.La. No. 77-1097 (11/7/78), 5th
) No. 79-1309 (5/15/80) (hereinafter “Lee
II’’).
Lee Lumber Co., Ltd. v. International Paper Co.,
US.D.C., W.D.La. No. 82-1446 (2/3/83),
amended 2/23/83), Sth Cir. No. 83-4112
(10/27/83) (hereinafter “*Lee III’’).
I have also reviewed the complaint filed in Lee
Lumber Co., Ltd. v. International Paper Co.,
U.S.D.C., W.D.La. No. 83-2809-A (hereinafter
“Lee IV”).
It is my Opinion that:
(1) Lee I is not a res judicata, or any other, bar
to the bringing of Lee IV, because it was held
to state the cause of action of ‘nullity or rescis-
sion,’ and to have prescribed, and dismissed
solely for that reason. Lee IV states a different
cause of action, the action to quiet title, which
has not prescribed. There being no identity of
cause of action, res judicata does not apply.
(2) Lee II is not a res judicata, or any other,
bar to the bringing of Lee IV, because it was
held to state the cause of action of ‘nullity or
rescission,” and to have prescribed, and dis-
missed solely for that reason. Lee IV states a
different cause of action, the action to quiet ti-
tle, which has not prescribed. There being no
identity of cause of action, res judicata does not
apply.
(3) Lee III is not a res judicata, or any other,
bar to the bringing of Lee IV, because it was
held to state the possessory cause of action.
Lee IV states a different cause of action, the
action to quiet title, which has not prescribed.
Appendix E, Page 5
There being no identity of cause of action, res
judicata does not apply.
(4) The action to quiet title stated in Lee IV
has not prescribed and does not prescribe so
long as an alleged cloud on title remains of
record. Prescription of the action of ‘nullity or
rescission’ is not a bar to the bringing of an-
other cause of action such as that to quiet title,
even if arising from the same facts. In my
opinion, so long as a lease remains outstanding
and the lessee claims performance under it, the
lessor may raise any objections the lessor may
have to the validity of the lease. In my opin-
ion, Lee IV is warranted by and in accordance
with existing law.”
Dated: February 28, 1985
vel
James S. Gravel
Sworn to and subscribed before me the 28th day of
February, 1985.
M le
Notary Public
Appendix E, Page 6
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
ROBERT B. EUBANK, Individually
and on behalf of all other
shareholders of Lee Lumber
Co., Ltd.
vs.
LEE LUMBER COMPANY, LTD. CIVIL ACTION
NO. 83-2809-A
vs.
INTERNATIONAL PAPER COMPANY
AFFIDAVIT
STATE OF LOUISIANA
PARISH OF RAPIDES
BEFORE ME, the undersigned Notary Public, per-
sonally came and appeared EDWARD G. RANDOLPH,
JR., who, being first sworn by me, did depose and tes-
tify as follows:
“My name is Edward G. Randolph, Jr. I am a
practicing attorney at law, and a member of the
Louisiana Bar Association. I graduated from
the Tulane University School of Law in 1967. I
have been a member of the Louisiana Bar As-
sociation and a practicing attorney for 17 years.
I have read the court opinions in the following
cases:
L.L. Brewton Lumber Co., Inc. v. Continental
Can Co., Inc., USDC, W.D. La. No. 14680
(12/11/71), 480 F.2d 923 (Sth cir. 1972)
(hereinafter “Brewton”).
Appendix E, Page 7
Lee Lumber Co., Ltd. v. International Paper Ce..,
321 So.2d 42 (La. App. 1976), 324 So.2d 423
(La. 1976), 345 So.2d 212 (La. App. 1977), 347
So.2d 503 (La. 1977) (hereinafter “Lee I’).
Lee Lumber Co., Lid. v. International Paper Co.,
USDC, W.D. La. No. 77-1097 (11/7/78), Sth
Cir. No. 79-1309 (5/15/80) (hereinafter “Lee
II’).
Lee Lumber Co., Lid. v. International Paper Co..,
USDC, W.D. La. No. 82-1446 (2/3/83),
amended 2/23/83), Sth Cir. No. 83-4112
(10/27/83) (hereinafter “Lee III"’).
I have also reviewed the complaint filed in Lee
Lumber Co., Lid. v. International Paper Co.,
USDC W.D. La. No. 83-2809-A (hereinafter
“Lee IV”).
It is my opinion that:
(1) Lee I is rot a res judicata, or any other,
bar to the bringing of Lee IV, because it was
held to state the cause of action of ‘nullity or
rescission,’ and to have prescribed, and dis-
missed solely for that reason. Lee IV states a
different cause of action, the action to quiet ti-
tle, which has not prescribed. There being no
identity of cause of action, res judicata does not
apply.
(2) Lee II is not a res judicata, or any other,
bar to the bringing of Lee IV, because it was
held to state the cause of action of ‘nullity or
rescission,’ and to have prescribed, and dis-
missed solely for that reason. Lee IV states a
different cause of action, the action to quiet ti-
tle, which has not prescribed. There being no
identity of cause of action, res judicata does not
apply.
(3) Lee III is not a res judicata, or any other,
bar to the bringing of Lee IV, because it was
held to state the possessory cause. of action.
Lee IV states different cause of action, the ac-
Appendix E, Page 8
tion to quiet title, which has not prescribed.
There being no identity of cause of action, res
judicata does not apply.
(4) The action to quiet title stated in Lee IV
has not prescribed and does not prescribe so
long as an alleged cloud on title remains of
record. Prescription of the action of ‘nullity or
rescission’ is not a bar to the bringing of an-
other cause of action such as that to quiet title,
even if arising from the same facts. In my
opinion, so long as a lease remains outstanding
nd the lessee claims performance under it, the
lessor may raise any objections the lessor may
have to the validity of the lease. In my opin-
ion, Lee IV is warranted by and in accordance
with existing law.”
DATED: March 18, i985.
Edward G. Randolph, Jr.
EDWARD G. RANDOLPH, JR.
SWORN TO AND SUBSCRIBED before me, Notary
Public, this 18th day of March, 1985.
mi ith
NOTARY PUBLIC
Appendix E, Page 9
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
ALEXANDRIA DIVISION
ROBERT B. EUBANK, Individually
and on behalf of all other
shareholders of Lee Lumber
Co., Ltd.
ys.
LEE LUMBER COMPANY, LTD. CIVIL ACTION
NO. 83-2809-A
vs.
INTERNATIONAL PAPER COMPANY
AFFIDAVIT
State of Alabama )
County Jefferson )
Before me, the undersigned Notary Public, person-
ally came and appeared Robert B. Eubank, who being
first sworn by me did depose and testify as follows:
“My name is Robert B. Eubank. I am plaintiff
in the captioned case.
I am an attorney. I have been a member of the
Louisiana Bar Association since 1968, and of
the Alabama Bar Association since 1973. I have
practiced law for 17 years, for a large publicly
owned corporation in Birmingham, Alabama;
for a law firm there; and in my own office
there. I have also been on the faculty of Cum-
berland Law School, Birmingham, Alabama,
part-time for 4 years and full-time for 1 year.
My law degrees are from Harvard Law School
(L1.B., 1967) and New York University (LI.M.
in Taxation, 1973).
Appendix E, Page 10
I filed the captioned action, and a prior one
against the same parties, because in my best
judgment prior litigation had not resolved the
rights of Lee Lumber Company, Ltd. and Inter-
national Paper Company as regards the lease
which is the subject of the present suit. I have
represented myself because in my best judg-
ment I could not afford to hire counsel to rep-
resent me, given the size and resources of de-
fendant International Paper Company, and also
because I deemed myself competent in the
matter. Lee Lumber Company, Ltd. abandoned
prior litigation out of concern for its costs. I
have no record of Lee’s total expenses, but I
personally know of $10,500.00 paid by Lee in
legal fees.
In the course of litigating the previous case in
which I was plaintiff, I spent at least $2,314.57
for which I have cancelled checks or credit card
receipts, and $918.08 in Westlaw charges. I am
confident I have spent at least this much again,
for which I have no records. I have devoted
considerable professional time to the matter, as
well as committed considerable office, secretar-
ial, and equipment resources to it. Among
other things, I prepared the complaint and other
pleadings, motions and briefs at the district
court level, and reviewed those of opposing
counsel. At the circuit court level, I prepared a
motion for initial consideration en banc, a
principal brief, a reply brief, a motion for re-
consideration, and a separate motion for recon-
sideration en banc, as well as the necessary re-
search and review of filings by opposing coun-
sel. Thereafter, I prepared and had printed a
petition for certiorari to the Supreme Court of
the United States, and related documents.
I filed the captioned suit solely in the sincere
professional opinion and belief:
(1) that prescription of one cause of action
does not bar the bringing of others, and
Appendix E, Page 11
(2) that a prior judgment dismissing a suit or
suits for the prescription of one cause of action
does not bar the subsequent bringing of another
cause of action, and
(3) that International is in breach of the lease.
I did not in any sense file it to vex or harass or
cause expense to International Paper Company.
It is of no advantage to me whatsoever, whether
it is vexed or harassed or caused expense, and
for that matter I do not think it has been sig-
nificantly vexed, harassed or caused expense. I
certainly would not in any event spend any of
my own time or money to vex it, harass it or
cause it expense. Nor have I used the threat of
vexation, harassment or expense to attempt to
provoke any sort of settlement with Interna-
tional Paper Company. There have been abso-
lutely no discussions of settlement between their
counsel and me, nor any attempts by either of
us to initiate any such discussions. I would not
in fact settle the matter for anything less than
the demand of the suit, that the lease be can-
celled.”
Dated: February 18, 1985
Robert B, Eubank
Robert B. Eubank
Sworn to and subscribed before me the 18th day of
February, 1985.
Nancy Hand
Notary Public
Appendix E, Page 12
Appendix F
Constitutional Provisions and
Statutes Involved
Constitution of the United States
Amendment V
No person shall be held to answer for a capital, or
Otherwise infamous crime, unless on a presentment or
indictment of a grand jury, except in cases arising in
the land or naval forces or in the militia, when in ac-
tual service in time of war or public danger; nor shall
any person be subject for the same offense to be twice
put in jeopardy of life or limb; nor shall be compelled
in any criminal case to be a witness against himself,
nor be deprived of life, liberty or property, without
due process of law; nor shall private property be taken
for public use, without just compensation.
Constitution of the United States
Amendment XIV, Section 1
All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citi-
zens of the United States and of the state wherein they
reside. No state shall make or enforce any law which
shall abridge the privileges or immunities of citizens of
the United States; nor shall any state deprive any per-
son of life, liberty, or property, without due process of
law; nor deny to any person within its jurisdiction the
equal protection of the laws.
Federal Rules of Civil Procedure
Rule 56(c)
Rule 56. Summary Judgment.
(c) MOTION AND PROCEEDINGS THEREON.
The motion shall be served at least 10 days before the
time fixed for the hearing. The adverse party prior to
the day of hearing may serve opposing affidavits. The
judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judg-
ment as a matter of law. A summary judgment, inter-
locutory in character, may be rendered on the issue of
liability alone although there is a genuine issue as to
the amount of damages.
Federal Rules of Appellate Procedure
Rule 38
If a court of appeals shall determine that an appeal
is frivolous, it may award just damages and single or
double costs to the appellee.
Fifth Circuit Local Rule 47.6
47.6 Affirmance Without Opinion.
When the Court determines that any one or more of
the following circumstances exists and is dispositive of
a matter submitted to the Court for decision: (1) that a
judgment of the District Court is based on findings of
fact which are not clearly erroneous, (2) that the evi-
dence in support of a jury verdict is not insufficient,
or (3) that the order of an administrative agency is
supported by substantial evidence on the record as a
whole; and the Court also determines that no error of
law appears and an opinion would have no precedential
value, the judgment or order may be affirmed or en-
forced without opinion.
Appendix F, Page 2
In such case, the Court may in its discretion enter
either of the following orders: “AFFIRMED. See Loc.
R. 47.6.” or “ENFORCED. See Loc. R. 47.6.”
See N.L.R.B. v. Amalgamated Clothing Workers of
America, 5th Cir. 1970, 430 F.2d 966.
Louisiana Civil Code
Article 2032
Art. 2032. Prescription of Action. Action for an-
nulment of an absolutely null contract does not pre-
scribe.
Action of annulment of a relatively null contract
must be brought within five years from the time the
ground for nullity either ceased, as in the case of inca-
pacity or duress, or was discovered, as in the case of
error or fraud.
Nullity may be raised at any time as a defense
against an action on the contract, even after the action
for annulment has prescribed.
Louisiana Civil Code
Former Article 2034
Art. 2034. Every obligation is null, that has been
contracted on a potestative condition, on the part of
him who binds himself.
Louisiana Civil Code
Former Article 2221
Art. 2221. In all cases, in which the action of nul-
lity or rescission of an agreement, is not limited to a
shorter period by [a] particular law, that action may be
brought within ten years.
That time commences in case of violence, only
from the day on which the violence has ceased; in case
Appendix F, Page 3
of error or deception, from the day on which either
was discovered, and for acts executed by married
women not authorized, from the day of the dissolution
of the marriage or of the separation.
With regard to acts executed by persons under in-
terdiction, the time commences only from the day that
the interdiction is taken off; and with regard to acts
executed by minors, only from the day on which they
become of age.
Louisiana Civil Code
Article 2464
Art. 2464. Essential element of price. The price
of the sale must be certain, that is to say, fixed and
determined by the parties.
_ It ought to consist of a sum of money, otherwise it
would be considered as an exchange.
It ought to be serious. that is to say, there should
have been a serious and true agreement that it should
be paid.
It ought not to be out of all proportion with the
value of the thing; for instance the sale of a plantation
for a dollar could not be considered as a fair sale; it
would be considered as a donation disguised.
Louisiana Civil Code
Former Article 3542
Art. 3542. The following actions are prescribed by
five years:
That for the nullity or rescission of contracts, tes-
taments or other acts.
That for the reduction of excessive donations.
Appendix F, Page 4
That for the rescission of partitions and guarantee
of the portions.
This prescription only commences against minors
after their majority.
28 United States Code 294(b), -(c), -(d), -(e)
294. Assignment of retired Justices or judges to
active duty.
* *¢
(b) Any judge of the United States who has retired
from regular active service under section 371(b) or
372(a) of this title shall be known and designated as a
senior judge and may continue to perform such judicial
duties as he is willing and able to undertake, when
designated and assigned as provided in subsections (c)
and (d).
(c) Any retired circuit or district judge may be
designated and assigned by the chief judge or judicial
council of his circuit to perform such judicial duties
within the circuit as he is willing and able to under-
take. Any other retired judge of the United States
may be designated and assigned by the chief judge of
his court to perform such judicial duties in such court
as he is willing and able to undertake.
(d) The Chief Justice of the United States shall
maintain a roster of retired judges of the United States
who are willing and able to undertake special judicial
duties from time to time outside their own circuit, in
the case of a retired circuit or district judge, or in a
court other than their own, in the case of other retired
judges, which roster shall be known as the roster of
senior judges. Any such retired judge of the United
States may be designated and assigned by the Chief
Justice to perform such judicial duties as he is willing
Appendix F, Page 5
and able to undertake in a court outside his own cir-
cuit, in the case of a retired circuit or district judge, or
in a court other than his own, in the case of any other
retired judge of the United States. Such designation
and assignment to a court of appeals or district court
shall be made upon the presentation of a certificate of
necessity by the chief judge or circuit justice of the
circuit wherein the need arises and to any other court
of the United States upon the presentation of a cer-
tificate of necessity by the chief judge of such court.
No such designation or assignment shall be made to the
Supreme Court.
(e) No retired Justice or judge shall perform judi-
cial duties except when designated and assigned.
28 United States Code 137
137. Division of business among district judges.
The business of a court having more than one
judge shall be divided among the judges as provided
by the rules and orders of the court.
The chief judge of the district court shall be re-
sponsible for the observance of such rules and orders,
and shall divide the business and assign the cases so far
as such rules and orders do not otherwise prescribe.
If the district judges in any district are unable to
agree upon the adoption of rules or orders for that
purpose the judicial council of the circuit shall make
the necessary orders.
Appendix F, Page 6
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.