Two years after Paramount Pictures lost its slugfest with Art Buchwald over the conception of “Coming to America,” the studio has officially submitted its complete appeal, claiming the original court made two glaring mistakes.

Filed last Thursday with the California 2nd District Court of Appeal, the 86 -page brief argues to overturn the $ 900,000 judgment given to writer Buchwald and producer Alain Bernheim, who claimed in Los Angeles Superior Court that the pic was based on Buchwald’s 2 1/2-page treatment “King for a Day.”

“We believe the decision was fundamentally wrong,” said Bertram Fields, attorney for the studio. “The motion picture ‘Coming to America’ was demonstrably not based on the 2 1/2-page treatment that Mr. Buchwald submitted.”

Fields predicted dire consequences for the industry if the decision were not overturned.

“We contend that would be a disaster not only for Paramount and the motion picture business, but for anyone who ever made a contract with anybody else,” Fields said.

Pierce O’Donnell, legal rep for Buchwald, chided the appeal as a “rehash of factual and legal arguments that were properly rejected” in the original trial.

O’Donnell doubtful

“There is nothing in Paramount’s brief that persuades me they will be any more successful on appeal than they were in the trial court,” said O’Donnell, who co-authored a book about the case called “Fatal Distraction.”

Though the full appeal took nearly two years to file, Fields said this was due to the court’s time-consuming need to assemble the 37,000-page record of the trial. Par had filed a notice of appeal in August 1992.

Treatment shelved

Par originally spent some $ 500,000 to develop Buchwald’s treatment, but later shelved the project. The studio ultimately made “Coming to America,” starring Eddie Murphy, claiming it was based on a story that Murphy provided.

Judge Harvey Schneider not only ruled that the pic was based on Buchwald’s treatment, but that the studio had cheated Bernheim and Buchwald when it gave them a portion of the pic’s “net profits,” an often unrecoupable position.

In a two-pronged attack, the appeal complains the court misjudged the application of phrase “based upon” with regard to the Buchwald treatment. It also argues that the studio was not “unconscionable” in its net profits argument , as Schneider had originally ruled.

Par contests accusations of “unconscionability” on several levels, specifically claiming that Buchwald and Bernheim knew what “net profits” were when they originally negotiated for them.

“They admitted that they knew what the contract said and what the definition of net profits was,” said Fields. “We anticipate making a number of arguments as to why that decision was wrong.”

Fields said Buchwald andBernheim negotiated fervently to receive net profits, saying this fact alone eliminates any possibility of legal unconscionability. “They negotiated every aspect of their contract and many of the provisions. It’s not unconscionable if there has been negotiation,” Fields said.

A rule of unconscionability also does not apply, the appeal said, to cases where professional negotiators are used. And it says if the provision isn’t mandatory in the contract, then it cannot be considered unconscionable.

As it argued in the trial, Par claims in the appeal that Buchwald’s treatment was not the actual basis for “Coming to America.” Judge Schneider expressly rejected testimony offered by both sides in the original trial about the meaning of the phrase “based upon.”

The appeal asks the court to consider the meaning of that phrase, independent of the original court’s decision.

O’Donnell claims Paramount originally agreed to the court’s interpretation of the phrase, and is only now reversing its position.

“This is a classic example of a flip-flop,” O’Donnell said. “Apparently, Paramount believes in the old saying that a foolish consistency is the hobgoblin of small minds.”

O’Donnell said he would respond to the appeal in the next 60 days.

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