Opposition Brief — Eubank v. International Paper Co.

NO. 85-1814

: s Supreme court, US,

FILED

we TNE JUN % 1986

JOSEPH F. SPANIOL, JR.

Supreme Court of the United-States-

OCTOBER TERM, 1985

ROBERT B. EUBANK,

Petitioner

Individually And On Behalf Of All Other

Shareholders Of Lee Lumber Company, Ltd.

versus

LEE LUMBER COMPANY, LTD.,

Respondent

versus

INTERNATIONAL PAPER CCMPANY,

Respondent

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

BRIEF OF RESPONDENT,

INTERNATIONAL PAPER COMPANY,

IN OPPOSITION TO PETITION FOR CERTIORARI

DAVID I. GARRETT, JR., P. C.

MERWIN M. BRANDON, JR., P. C.

Madison, Garrett, Braridon,

Hamaker, Wilson & Tugwell

1406 Royal Avenue

Monroe, Louisiana 71207

Telephone: (318) 387-9496

QUESTIONS PRESENTED FOR REVIEW

1. Question No. | proposed for review by Petitioner is not

presented by the factual and legal circumstances of this

lawsuit, and is inappropriate and inapplicable to any review

of the Judgment of the Fifth Circuit Court of Appeals herein.

The “unprescribed cause of action” alluded to by Petition-

er in said Question No. 1 refers to a “‘cause of action’”’ alleged

by Petitioner in earlier lawsuits between these same parties,

involving this same controversy, as an underlying “‘cause of

action”’ or basis for Petitioner’s claims and demands in said

earlier lawsuits. Earuer judgments of the United States

District Court for the Western District of Louisiana, affirmed

by the Fifth Circuit Court of Appeals, have held this “‘cause

of action”’, now alluded to herein by Petitioner, to be unavail-

able to Petitioner in the legal and factual circumstances

found in this lawsuit.

2. Question No. 2 proposed by Petitioner for review is not

presented by the factual and legal circumstances of this

lawsuit, is somewhat misleading and is inappropriate and

inapplicable to any review of the Judgment of the Fifth

Circuit Court of Appeals herein.

The “affidaviis and opinions” of other attorneys and

professors of law, submitted by Petitioner to the Fifth Circuit

show on their faces to be nothing more than “‘opinions’’, and,

even so, primarily based upon either a complete misunder-

standing of the true factual and legal circumstances involved

in the earlier litigation between the parties, or a refusal to

recognize same, on the part of individuals furnishing said

affidavits and opinions.

The grant of sanctions, in the form of attorneys’ fees,

against Petitioner by the Fifth Circuit Court of Appeals was

ii

QUESTIONS PRESENTED FOR REVIEW (Continued)

made upon the finding by the Fifth Circuit that this Petitioner

has no colorable argument under Louisiana law to support his

theory in this lawsuit and that the appeal of the Judgment of

the District Court herein to the Fifth Circuit was completely

meritless, all based upon its consideration of the record

before it and of the established history, factual and legal cir-

cumstances of this and earlier lawsuits litigated between these

same parties, involving this same controversy.

3. Respondent respectfully shows that no questions what-

soever are presented in this lawsuit, with regard to Rulings

and/or Judgments of either the District Court below or the

Fifth Circuit Court of Appeals, for review by this Honorable

Court. Same are on their face eminently correct.

iti

LIST OF RELATED COMPANIES

In compliance with Rule 28.1, the following List of Related

Companies is furnished. International Paper Company is a

publicly owned, international corporation and has no parent

corporation. Rule 28.1 does not require the listing of wholly-

owned subsidiaries.

State or Pe-centage

Country of of

Name Incorporation Ownership

Anthony Forest Products Co. Delaware 49%

309 No. Washington Street

El Dorado, AR 71730

Arizona Chemical Company Delaware 90.1%

200 South Sudduth Place

Panama City, FL 32404

Calpine Containers, Inc. California 31.7%

1875 Olympic Boulevard

Walnut Creek (Contra Costa

County), CA 94596

Calpine Sales, Inc. California 32.8%

1875 Olympic Boulevard

Walnut Creek (Contra Costa

County), CA 94596

Corporacion Forestal Venezuela 49%

De Venezuela, C. A.

Manufacturas de Papel, C. A.

Apartado Postal 2046

Carmelitas, Caracas,

Venezuela

iv

RELATED COMPANIES (Continued )

State or Percentage

Country of of

Name Incorporation Ownership

Envases Internacional Venezuela 99.9%

Caracas, Venezuela

Apartado 5849 Carmelitas

101

Forest Lines Agencies (UK) Ltd. England 50%

4/5 Grosvenor Place

London SWIX 7HD, England

Indian Lake Dam Holding Corp. New York 57.9%

126 State Street

Albany, NY 12207

International Paper Hong Kong 50%

(Far East) Limited

1207 Alexandra House

16-29 Chater Road

Hong Kong

International Paper Company Switzerland 97.5%

(Europe) Limited

Talacker 41

P.O. Box 8029

Zurich, Switzerland

~J

~

S

International Paper Republic of 92.

Korea, Ltd. Korea

194-4, Insa-long

Chongro-Ku

Seoul, Korea

Vv

RELATED COMPANIES (Continued)

State or Percentage

Country of of

Name Incorporation Ownership

International Paper Republic 99.9%

Taiwan Ltd. of China

Cathay min Sheng Chan Kwo

Building

4th Floor, Room B

350 Min Sheng East Road

Taipei 104, Taiwan

Republic of China

IP Investments (UK) Limited Delaware 99.9%

4/5 Grosvenor Place

London, SWIX 7HD England

IP Property Company (UK) Delaware 99.9%

Limited

Road Three, Industrial Estate

Winsford, Cheshire, CW7

3RJ, England

IPI Corporation Japan 51%

Juzen Building

9-6, Nagata-cho 2-chone

Chiyoda-ku, Tokyo 100 Japan

v1. S. 2. 1. Italy 50%

Via Manzoni 31,

Milan, Italy

RELATED COMPANIES (Continued)

Name

Mississippi Export

Railroad Company

P. O. Box 743

Moss Point, MS 39563

Productora De Papeles

S. A. “PROPAL”

Yumbo, Republic of

Coiombia, South America

Rouviere Corporation

Avenida Federico Boyd,

No. 33

Panama, Republic of Panama

Sicilcartone S. r. ].

Via Salemi, 18

Marsala, Italy

Societe Civille

Immobiliere Les

Semestres Montcalde

25, Rue Michel Salles

92210 Saint Cloud, France

Societe Guadeloupeene

de Carton Ondule

Peres Blancs

Bailif

Guadeloupe, French

West Indies

vi

State or

Country of

Incorporation

Mississippi

Republic

of Colombia

Republic

of Panama

Italy

France

Republic

of France

Percentage

of

Ownership

40.6%

25%

51%

50%

99.9%

99.9%

Vil

RELATED COMPANIES (Continued)

State or Percentage

Country of of

Name Incorporation Ownership

Societe Mediterraneene France 84.6%

D’Emballages

25, Rue Michel Salles

92210 Saint Cloud, France

TABLE OF CONTENTS

Page

Questions Presented for Review .................... i

Se er ee OI 3 o's nso be ce nes neeeseceess ili

a ee ee ee ee ee Viii

ps RT re ee ee eee eee ee ix

Statement of the Case .............5.. yee res l

ee eee beeen eee 8

Argument in Opposition to Allowance of Writ

1. Res Judicata and Prescription............ )

2. Imposition of Attorney’s Fees ........... 12

Eo 6i5 4% 55 oh 4S OR CARES OV CAS 00 6064 4k 16

ix

TABLE OF AUTHORITIES

Pages

Cases

Angel v. Bullington, (1947) 330 U.S. 183, 192-1933,

ete ye ge} Re ee er 10

L. L. Brewton Lumber Co., Inc. v. Continental Can

Co., Inc., U.S.D.C. W.D. La. No. 14680, affirmed

GEO F.2e Dae Gee O CTE oc vest ueweenvess ee ee

Cromwell v. County of Sac, (1877) 94 U.S. 351, 24

OE Ferree Sy ee pe Se eae ag ts eee 9

Friedenthal v. Generai Insurance Company of America,

Per ce ear ea yk hh os 6 ues 10

Lawlor v. National Screen Service Corp., (1955) 349

U.S. 322, 326, 75 S.Ct. 865, 99 L.Ed. 1122.......... 9

Lee Lumber Co., Ltd. v. International Paper Co. , 321

So.2d 42 (La. App. 1975) cert. den. 347 So.2d 503

TRE g : GRP nr ata, an Sec aes over Grea va aaa er 3

Malhoit v. Southern California Retail Clerk’s Union,

oo fe ee, ee 8 ee bl: Se ere 15

xX

TABLE OF AUTHORITIES (Continued)

Pages

STATUTES:

Constitution of the United States

I Sac teth er Bi eis a aie eg avi ar Wik 14

Constitution of the United States

I re eee ak pa win ers GO Reh ewe a 14

Federal Rules of Appellate Procedure,

so Oe ee ee era eS b6 ke hele 1S

Federal Rules of Civil Procedure,

PE er Oe ee ee een een Lay bo oe oo 15

United States Supreme Court Rule 17 ..... . pore Shae 16

pat ody PR ee ee eer a ere eee 14,15

STATEMENT OF THE CASE

The hypothetical scenario with which Petitioner begins his

Statement of the Case is quite apparently concocted by

Petitioi.cr to provide an erroneous factual and circumstantial

framework upon which to attempt to display for this Court

his facetious theories and arguments already presented on

numerous occasions to the District Court and Fifth Circuit

Court of Appeals and even earlier presented to this Court

in the earlier action referred to by Petitioner as Lee III.

Embedded in this scenario is the fishhook of fallacy. Peti-

tioner’s hypothetical presentation is not factually or legally

comparable to this lawsuit, nor to the history of the contro-

versy and litigation between these same parties in the earlier

lawsuits before the Courts below and before this Court, nor

to the present lawsuit and its disposition by the Courts below.

Respondent submits that the best and most authoritative

information regarding the factual situation and circumstances

giving rise to this protracted litigation and the most concise

documentation of the history of this litigation will be found

in the Rulings of the District Court below in Lee II, Lee III

and Lee IV (Petitioner’s Appendix B, pages 1 through 10,

Appendix C, pages 1 through 7 and Appendix D, pages 1

through 5).

The Ruling in Lee II finds that the pleadings and exhibits

therein establish the facts of said lawsuit beyond dispute. The

District Court details the factual situation which it finds to

have been established beyond dispute, discusses earlier litiga-

tion between the parties in the State Courts of Louisiana,

both of original jurisdiction and of appellate jurisdiction, and

particularly cites findings of fact, holdings and rulings of the

State Courts of Louisiana.

Thereafter the Ruling in Lee II examines and discusses in

great detail and at great length the contentions and claims for

relief of Plaintiff therein, Lee Lumber Company, Ltd., setting

2

forth in some detail the Court’s analysis of all of the grounds

relied upon by Plaintiff therein.

Particularly, the District Court in Lee II specifically covered,

discussed and ruled upon, adversely to Lee Lumber Company,

Ltd., the very contentions, grounds and claims later made by

this Petitioner in Lee III. A brief but careful reading of this

Ruling of the District Court below in Lee II will definitively

answer in the affirmative the question of whether findings of

fact and application of appropriate laws of the State of

Louisiana were accomplished by the District Court below

in Lee II.

The Ruling of the District Court below in Lee III makes

particular reference to its earlier Ruling in Lee II, as well as

to earlier stages of litigation between these parties in the

Louisiana Courts. This review of the facts and history of the

earlier litigation in the Ruling in Lee III prefaced and tied in

the actual Ruling of the Court with regard to the allegations

and claims of the Complaint of this Petition in Lee III.

A brief but careful reading of this ruling of the District

Court below in Lee III clearly reflects the findings of fact and

application of appropriate Louisiana law thereto.

The Ruling in the District Court in this lawsuit, Lee IV,

again summarizes the past history of the litigation of this

same controversy between these same parties and leaves no

doubt in the mind of any reader that the District Court

found that in Lee IV this Petitioner has again attempted to

relitigate the same dispute which has been litigated between

these same parties since 1973.

The affirming Judgment of the Fifth Circuit Court of

Appeals (Petitioner’s Appendix D, pages 8 through 10), itself

carefully and concisely reviews the history of the litigation of

3

this same controversy between these same parties, in both the

State and Federal Courts, together with the several Judgments

rendered as a result thereof and the individual and cumulative

effect of these earlier Judgments.

The Summary Judgments granted by the District Court

below in Lee II, Lee III and Lee IV and affirmed by the Fifth

Circuit Court of Appeals were clearly Judgments on the

merits, resulting from an application by a Court of competent

jurisdiction of appropriate statutory, codal and/or case law to

undisputed factual situations and/or findings of fact made by

the Court.

Petitioner discusses from time to time in his Petition the

1971 decision by the same District Court below in L. L.

Brewton Lumber Co., Inc. v. Continental Can Co., Inc., U.S.

D.C., W.D. La., No. 14680, 480 F.2d 923 (CA 5 1972).

Discussion of this decision will be made at points later herein.

Suffice it to say at this point that the Court in that case did

not have before it the question of prescription. The applica-

tion of Louisiana law by the District Court below in that case

is in no way analogous to the application made by the Court

of Louisiana law in either Lee II, Lee III or Lee IV.

In his Statement of the Case in his Petition to this Court

(pages 4-5), Petitioner sets forth two contentions or claims

that the Lease Agreement which has been the subject of this

protracted litigation between the parties is void. While these

contentions or claims can in no way be said to be related to

the questions which Petitioner now attempts to present to

this Court for review, the earlier final disposition of same

should be noted.

The original litigation before the Courts in the State of

Louisiana, Lee Lumber Co., Lid. v. International Paper Co..,

321 So.2d 42 (La. App. 1975), cert. den. 324 So.2d 423

4

(La. 1976\, 345 So.2d 212 (La. App. 1977), cert. den. 347

So.2d 503 (La. 1977), properly disposed of both contentions

set forth by Petitioner. In this regard, this Court is referred

to the detailed discussion of the decisions in said Louisiana

litigation set forth in the ruling by Judge Scott, of the District

Court below, in the Lee II decision. (Petitioner’s Appendix B,

pages 1-4). Any claim for cancellation of the Lease Agree-

ment for lack of consideration was at the time of the Louisi-

ana litigation held to have been long prescribed under either

Louisiana Civil Code Article 3542 or Article 2221, providing

for prescriptive periods of five or ten years, respectively. The

claim of the existence of a potestative condition under

Louisiana iaw was rejected by the Louisiana Courts. Further,

the District Court below, in Lee II, (Petitioner’s Appendix B,

pages 6 and 7) further disposed of these contentions of lack

of serious consideration and the existence of a potestative

condition.

Petitioner continues to argue the applicability of the

decision in the L. L. Brewton Co. case, supra, as he has for

some twelve years, both as Counsel for Lee Lumber Co., Ltd.

in Lee I and Lee II, and as Plaintiff in Lee III and as Petitioner

herein in Lee IV, conveniently disregarding the obvious fact

that no question of prescription was ever raised or ever

entered into the consideration of the Court in that case.

The District Court below did not reach a “contrary conclu-

sion”’ in either Lee II, Lee III, or Lee IV. Application by the

Court of Louisiana laws of liberative prescription went to the

heart of the matters in Lee II and Lee III and, subsequently,

in Lee IV, the Louisiana and Federal doctrines of res judicata.

The Courts below have, in fact, not attempted to apply the

holdings of Brewton in this litigation. The obvious reason

that said decision has not been applied to this litigation is the

clear and indisputable difference in the factual situations

5

involved and the recognized inapplicability of the Brewton

decision to the factual and legal circumstances involved in

this and earlier litigation of this controversy between these

parties.

In his discussion of Lee I (pages 6 and 7), Petitioner know-

ingly misstates the actual holdings of the Louisiana Courts.

This Court is respectfully referred to the reported decisions

in said litigation, supra, and to the citations hereinabove to

the note and discussion of said State Court decision by the

District Court below in Lee II (Petitioner’s Appendix B,

pages 1-4).

In discussing Lee II, Petitioner states that said lawsuit was

brought in the District Court below on certain “underlying

causes of action’”’, among which were the action to quiet title

and the possessory action, and states that same had not pre-

scribed. He further states that International Paper Company,

respondent herein, was granted Summary Judgment by the

District Court in Lee II solely on the basis of prescription of

the action of nullity or rescission. This statement is, at the

very best, intentionally misleading.

The Court is respectfully referred to the District Court’s

decision in Lee II (Appendix B, pages 4-10) for the true

reasoning and holding of the District Court. It will be found

that Lee Lumber Co., Ltd. urged the action to quiet title and

the possessory action, among others, stating in its Complaint

that all of said underlying causes of action were based on the

invalidity of the Lease Agreement. In support of its conten-

tions at that time, Lee cit>d and argued a number of the same

decisions and authorities which Petitioner now urges to this

Court.

In outlining the history of Lee III, Petitioner states that

the District Court below held that the possessory action urged

ee

6

therein was stated and had not prescribed. This is not simply

an erroneous conclusion, it is a knowingly false statement.

The District Court ruled that International Paper Company is

possessing under a valid Lease Agreement and that, therefore,

there being no disturbance, the possessory action was not a

proper action before the Court (Petitioner's Appendix C,

pages 5 and 6). In that lawsuit, this Petitioner, by personal

affidavit filed with the District Court, had affirmed that his

only cause of action urged was the possessory action. This

Court is respectfully requested to note that the Ruling of the

District Court in Lee III did state that the Summary Judgment

granted International in Lee II was dispositive of the entire

claim of Lee Lumber Co., Ltd. and this Petitioner. The

District Court (Petitioner’s Appendix C, page 6, in footnote

11) indicated that “assuming arguendo that the lease was

void’, the time for the bringing of an action would be a

period of one year following any “disturbance” established.

However, the Lease Agreement is not void, but to the con-

trary, its validity was again reiterated in said Ruling.

As regards Petitioner’s discussion of Lee IV, it will be

found that Judge Scott, in the District Court below, did rely

upon and cite Lee I, Lee II and Lee III as being dispositive

of Petitioner’s claim or contention of an action to quiet title,

and held the Judgments therein res judicata as to all claims

and contentions of.Petitioner in Lee IV. The Fifth Circuit

Court of Appeals, in affirming the decision of the District

Court, stated that the precise issue in that appeal by Petitioner

had been decided against Lee Lumber Co., Ltd. in Lee II in

1980, stating that said determination was clearly res judicata

as to this present claim of Petitioner in Lee IV (Petitioner’s

Appendix D, page 10), but the Fifth Circuit did in fact

review all of the prior litigation between the parties involved

in this same controversy (Petitioner’s Appendix D, page 9).

7

It will be of particular interest to this Court to note that

much of the language, material and contentions now set forth

by Petitioner in his Statement of the Case in his Petition now

before the Court is repetitious, 0 occasion almost verbatim,

of that set forth by Petitioner in his Statement of the Case in

his Petition for Certiorari filed with this Court in Lee III

(No. 83-1918, October term 1983) even to misleading and/or

knowingly false statements. Particularly, materials and con-

tentions having to do with the history of past and curreni

litigation of this controversy between these same parties and

in connection with the Brewton decision have been repeated

in great part.

8

SUMMARY OF ARGUMENT

Respondent would at the outset submit to this Honorable

Court as strongly as possible that it views this Petition for

Certiorari as frivolous. Moreover, Respondent has always

viewed Lee II as unnecessary, as all claims of Lee Lumber Co.,

Ltd. had been completely and finally decided in the litigation

before the Louisiana Courts. Lee III was and is viewed by

Respondent as an abuse by this Petitioner of the judicial

process and as vexatious and harassing litigation. The filing

by Petitioner of the present lawsuit, Lee IV, in view of the

prudent legal analysis and approach required by the facts,

circumstances and history of this litigation, can only be char-

acterized as a further abuse of the judicial process and very

pointedly unnecessary, vexatious and harassing, with no

reasonable expectation of success.

Although denying actual sanctions, the District Court

below agreed (Petitioner’s Appendix D, page 4), stating that

valuable time and moncy has been wasted and an unnecessary

burden placed upon the Court by this Petitioner’s persistence

in relitigating this same dispute. It warned Petitioner that any

further attempt to relitigate same before tl at Court would be

at the risk of imposition upon him of whatever sanctions

might be deemed appropriate by the Court. The Fifth Circuit

(Petitioner's Appendix D, page 10) founc from the record

that the precise issue appealed from the District Court by this

Petitioner to the Fifth Circuit had already been decided,

contrary to the claims and interests of Lee and Petitioner, in

earlier litigation, that Petitioner had no colorable argument

under Louisiana law to support his theory that Lee IV is not

precluded by the Judgment rendered in Lee II, that the

appeal to said Cou1. by Petitioner was completely meritless

and granted sanctions to Respondent, in the form of attor-

neys’ fees and costs.

9

In this context, and in light of this clear message to Petition-

er by the District Court and Fifth Circuit below, Respondent

submits that the filing in this Court by Petitioner of this

Petition for Certiorari justifies imposition of additional

sanctions by this Honorable Court.

Each of the reasons relied on by Petitioner in seeking a

Writ of Certiorari is erroneous and facetious. Each is predi-

cated upon either an erroneous conception or conclusion as

to past and present factual and legal circumstances involved

in this lawsuit, or is based upon attempts to erroneously

apply misconceived legal principles to factual situations

which do not exist in this lawsuit.

For the convenience of the Court, Respondent will below

treat each of these stated reasons of Petitioner separately,

captioned and in the same order as presented in the Petition.

1. Res Judicata and Prescription.

‘“‘Res Judicata’”’ has been defined as a salutary doctrine

of repose, that gives conclusive finality to a final, vaiid judg-

ment. It is a doctrine which rests upon considerations of

economy of judicial time and public policy favoring the

establishment of certainty in legal relations. The rule or

doctrine interposes an absolute bar to further litigation of the

same cause of action between the same parties or their privies.

Its salutary principle is founded upon the generally recognized

policy that there must be some end to litigation and that

when one appears in Court to present his case, is fully heard,

and the contested issue is decided against him, he may not

later renew the litigation in another court. The judgment puts

an end to the cause of action, which cannot again be brought

into litigation between the parties, Cromwell v. County of

Sac, (1877) 94 U.S. 351, 24 L.Ed. 195; Lawlor v. National

Screen Service Corp., (1955) 349 U.S. 322, 326, 75 S.Ct. 865,

10

99 L.Ed. 1122. The doctrine prevents an encore and “reflects

the refusal of law to tolerate needless litigation’, Angel v.

Bullington, (1947) 330 U.S. 183, 192-1933, 67 S.Ct. 657,

9] L.Ed. 832.

The Federal and Louisiana rules are almost identical, as

regards the points of reference of each, and quite clearly are

based upon the same legal concept. The Louisiana doctrine,

sometimes referred to by the Federal Courts as ‘“‘judicial

estoppel”, has long been recognized by the Fifti Circuit,

which has earlier observed that same is given a less rigid con-

struction than that of res judicata, Friedenthal v. General

Insurance Company of America, (1968) 395 F.2d 202. Same

being subject to a less rigid construction actually results in

its being /ess permissive of relitigation, contrary to Petitioner’s

position in this regard.

The Ruling of the District Court below in this lawsuit

(Petitioner’s Appendix D, pages 1-7) sets forth a very good

analysis by Judge Scott of the Louisiana requirements of

res judicata. The “thing demanded”, the “cause of action” on

which the demand is founded and the identity of the parties

to the lawsuit were found by the District Court to be the

same in Lee IV as in Lee I, Lee II, and Lee III. The Fifth

Circuit (Petitioner’s Appendix D, pages 8-10) affirmed the

Judgment of the District Court, particularly pointing out that

Petitioner had in this action (Lee IV) characterized his

lawsuit as one to quiet title and, because recovery on this

theory was advanced by Lee Lumber Co., Ltd. in Lee II —

and rejected by the Court — the District Court correctly

dismissed Lee IV on grounds of res adjudicata.

Respondent submits that the authorities cited by Petitioner

in support of his argument of the inapplicability of res

adjudicata herein are of no help to Petitioner. In this lawsuit,

Petitioner’s cause of action had already been passed upon and

— ee

er

adjudged, in favor of respondent and against Petitioner, in

the various lawsuits previously tried before the Louisiana and

Federal Courts between these parties.

Petitioner would have this Court believe that the District

Court in Lee II “rejected” the claim of Lee Lumber Co., Ltd.

that it therein “‘stated the action to quiet title’’ by character-

izing same as an action to rescind or nullify a lease, thereby

holding that no other actions were stated. This approach is

intentionally misleading. This Court is again respectfully

referred to the Ruling of the District Court in Lee II (Peti-

tioner’s Appendix B, pages 4 and 5) wherein the District

Court sets forth and identifies the “underlying causes of

action” alleged in said lawsuit by Lee, including the action to

quiet title, and specifically notes that the Complaint therein

states that all of said underlying causes of action are based on

the alleged invalidity of the Lease Agreement. Holding that

the establishment of the invalidity of the lease was necessarily

a prerequisite to the maintaining of the “‘underlying causes of

action”, the District Court held that all of Lee’s alleged

causes for seeking the avoiding or invalidation of the Lease

Agreement had prescribed and thereby effectively disposed

of all alleged causes of action, principal or underlying. These

factual and legal circumstances, as well as the effect upon the

parties of the various Rulings and Judgments in the history of

this litigation, are apparent from the record.

Again, Petitioner goes to great length to attempt to present

to this Court as factual his very complicated misinterpretation

of the facts and law involved herein, be these misinterpreta-

tions innocent or intentional.

Petitioner (page 15).proposes to this Court that the action

to quiet title has continually accrued anew since-the decision

in Lee II and, for this reason, would not be barred said

decision. This Court is referred to the discussion of this

12

theory, advanced by Lee Lumber Co., Ltd. in Lee II, in the

opinion of the District Court therein (Petitioner's Appendix

B, pages 8 and 9). These claims of Lee, and now of Petitioner,

have also been previously adjudged in the history of this

litigation in favor of Respondent and against Lee and Peti-

tioner. It will be noted that some of the same authorities now

advanced by Petitioner for this theory were advanced by Lee

in Lee II.

One of the more esoterical theories advanced by this

Petitioner, as Counsel for Lee in Lee II and now on his own

behalf, is that under which he would rely upon Louisiana

Civil Code of Procedure Article 424, in using as a defense a

prescribed obligation, or the provisions of Louisiana Civil

Code Article 3032 (formerly Articles 2221 and 3542), which

provides that nullity may be raised as a defense against an

action on a contract, even after the prescription of the action

for annulment. Judge Scott’s District Court decision in Lee II

(Petitioner’s Appendix B, pages 7 and 8) deals with and

rejects this proposed theory and scenario in no uncertain

terms. The District Court therein found this argument and

theory unpersuasive, not supported by Louisiana jurispru-

dence and, more fundamentally, “because its acceptance

would result in an emasculation of the Louisiana prescription

laws in the area of nullity and rescission’.

Respondent submits that the Ruling of the District Court

below i: Lee IV, the grant ng of Summary Judgment in favor

of Respondent and the affirmation thereof by the Fifth

Circuit Court of Appe ss are all eminently correct.

2. Imposition of Attorney's Fees

This Petitioner has been personally and directly involved

with all aspects of prior 'itigation of this controversy between

these same parties, thro igh the Courts of the State of Louisiana

13

and through the Federal Courts, since the instigation of the

first lawsuit in 1973, first as Counsel for Lee Lumber Co.,

Ltd., then as Plaintiff in Lee III and Lee IV and now as

Petitioner herein. He is fully cognizant of the holdings and

elfect of prior Judgments rendered by the Louisiana and

Federal Courts. Any misconception as to the finality and

effectiveness of said prior Judgments, under which he may

now be proceeding, is in no way due to an honest misunder-

standing on his part, but due simply to his refusal to accept

the fact of said finality and conclusiveness. His bringing of

Lee IV against Respondent, in light of these prior holdings

and Judgments, the factual and legal circumstances of the

present relationship of the parties to this lawsuit and his

personal familiarity with and knowledge of same, with no

reasonable expectation of success, can only be viewed as

vexatious and harassing and as unreasonably multiplying the

proceedings in this controversy and unreasonably increasing

the cost of Respondent. His appeal of the Ruling and Judg-

ment of the District Court, and particularly in light of Judge

Scott’s admonitions set forth therein (Petitioner’s Appendix

D, page 10), with no colorable argument under Louisiana law

to support his theory of appeal, was completely meritless.

The Fifth Circuit found said appeai to be without colorable

argument and meritless and granted Respondent's motion for

attorney’s fees and costs against this Petitioner for pressing a

frivolous appeal.

Petitioner would have this Court believe that the Fifth

Circuit granted these sanctions against him in an atmosphere

completely devoid of any evidence or basis to support said

action. A reading of the affirming Opinion of the Fifth Circuit

(Petitioner’s Appendix D, pages 8-10) quite clearly shows

that the Fifth Circuit very carefully reviewed the entire

history of this litigation, the findings and effect of the various

Judgments rendered by both the State and Federal Courts

and the obvious factual and legal circumstances in which the

14

parties to this lawsuit found themselves at the time of the

vringing of Lee IV by Petitioner and at the time of the appeal

of the District Court’s decision therein to the Fifth Circuit

Court. The affidavits of other attorneys and former law

school personnel filed by Petitioner in support of his position,

and alluded to in his Petition, were nothing more or less than

personal opinions of parties supportive of Petitioner’s posi-

tion. Whatever weight may have been given to same by the

Fifth Circuit, that Court relied upon the findings of fact and

application of appropriate codal and/or statutory law by

Courts of competent jurisdiction, as established by the records

of the various phases of the history of this litigation, and

found that said appeal to it of the Ruling and Judgment of

the District Court was in fact frivolous, unsupported by

colorable argument under Louisiana law and meritless. In the

exercise of its discretion, sanctions were granted in favor of

Respondent and against Petitioner for pressing said frivolous

appeal.

Respondent submits that the question of granting or

refusing Petitioner a hearing on the question of sanctions and

attcrney’s fees below was a matter properly within the dis-

cietion of the Fifth Circuit Court of Appeals. It cannot be

said that a denial of such requested hearing was a denial of

due process under the Fifth and Fourteenth Amendments to

the Constitution. The Respondent submits that Petitioner’s

real dissatisfaction is with the decision reached by the Fifth

Circuit after considering all evidence, facts and circumstances,

not with any alleged failue of the Fifth Circuit to consider

same.

The Federal Rules of Civil Procedure, the Federal Rules of

Appellate Procedure and 28 U.S.C. Section 1927 provide for

specific responsibilities and obligations of attorneys in

presenting pleadings, motions and other papers to the Federal

Courts and fur imposition of sanctions and penalties against

ee ee

15

attorneys for abandonment or violation of these responsibili-

ties (F.R.C.P.,. Rule 11; F.R.A.P., Rule 38; 28 U.S.C. Sec.

1927).

Rule 38, Federal Rules of Appellate Procedure, provides

for imposition of sanctions by an Appellate Court, where it

shall determine that an appeal is frivolous. In Malhoit v.

Southern California Retail Clerks’ Union (9th Cir.-1984),

735 F.2d 1133, the Court, citing both 28 U.S.C. Sec. 1927

and The American Bar Association’s Code of Professional

Responsibility, awarded sanctions in the form of attorney’s

fees and costs and set forth the following as a measure or test

of the frivolous nature of an appeal, to wit:

‘“*** An appeal is frivolous if the result is

obvious or if the claims of error are whc ily

without merit. DeWitt v. Western Pacific

Railroad Co., 719 F.2d 1448, 1451 (9th Cir.

1983).”

i

It is submitted that the grant to Respondent of sanctions

against this Petitioner, in the form of attorney’s fees and

costs, for his lodging and pressing of the frivolous appeal, was

properly made, amply supported by evidence supplied by the

several Rulings and Judgments of Courts of competent juris-

diction, had throughout the history of this litigation, was

completely within the discretion of the Fifth Circuit and

eminently correct.

i et tei OS ABN LORIN a ON IO IH Fok 0 Leta

16

CONCLUSION

A review of the Writ of Certiorari is not a matter of right,

but of judicial discretion, and will be granted only where

there are special and important reasons therefor. The charac-

ter of reasons which will be considered by this Court is set

forth in its Rule 17.

It is respectfully submitted that no reasons have been

shown in these proceedings to support this request by Peti-

tioner for the issuance by this Court of a Writ of Certiorari.

Respondent submits that the Petition for Certiorari is

entirely without merit and respectfully requests that same

be denied.

All of the above and foregoing is thus respectfully

submitted.

David I. Garrett, Jr.

A Professional Law Corporation

Merwin M. Brandon, Jr. 7

A Professional Law Corporation

MADISON, GARRETT, BRANDON,

HAMAKER, WILSON & TUGWELL

1406 Royal Avenue

Monroe, Louisiana 71207

Attorneys for Respondent

17

CERTIFICATE OF SERVICE

I, David I. Garrett, Jr., one of the attorneys for Interna-

tional Paper Company, Respondent in these proceedings,

being a member of the Bar of the Supreme Court of the

United States, do hereby certify that on the 2nd day of

June, 1986, copies of this Opposition to the Petition for

Certiorari, with included or accompanying brief and argu-

ment, were mailed in duly addressed envelopes, with postage

prepaid, to:

Robert B. Eubank

Petitioner

Suite 203

15 Office Park Circle

Birmingham, Alabama 35223

Richard L. Crowell

Crowell, Owens & Tudor

Counsel for Lee Lumber Company, Ltd.

P. O. Box 330

Guaranty Bank & Trust Company Building

Alexandria, Louisiana 71309

I further certify that all parties required to be served have

_been served.

Dawid I Carit pase

David I. Garrett, Jr.