Bielkiewicz v. Rudisill

• Decision Date: 29 June 1967
• Docket Number: No. 2050--B,2050--B
• Citation: 201 So.2d 136
• Parties: Stafford BIELKIEWICZ et al., Plaintiffs-Appellants, v. Henry C. RUDISILL et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 136

201 So.2d 136

Stafford BIELKIEWICZ et al., Plaintiffs-Appellants, v. Henry C. RUDISILL et al., Defendants-Appellees.

No. 2050--B.

Court of Appeal of Louisiana, Third Circuit.

June 29, 1967.

Rehearing Denied July 27, 1967.

Roy & Roy, by Chris J. Roy, Marksville, for plaintiffs-appellants.

Gist, Methvin & Trimble, by H. B. Gist, Jr., Teekell & Nugent, by Howard N. Nugent, Gold, Hall & Skye, by Leo Gold, Stafford & Pitts, by Grove Stafford, Jr., Alexandria, for defendants-appellees.

Before TATE, FRUGE , and HOOD, JJ.

TATE, Judge.

In the present suit, the plaintiffs (Bielkiewicz and Laborde) sue for personal injuries sustained while riding in a motor vehicle driven by the defendant Rudisill. They sue him and two other defendants¹ for damages resulting from an accident of March 16, 1965, allegedly caused by negligence for which these defendants are liable.

The trial court sustained peremptory exceptions and dismissed this suit. In sustaining the exceptions, the trial court held that certain form 'releases' executed by the plaintiffs constituted a compromise or voluntary remission which extinguished or barred suit upon the plaintiffs' claim. The plaintiffs appeal.²

The two principal issues of this appeal are:

I. Can the defense that an obligation has been extinguished by a voluntary release be raised by a peremptory exception triable in limine, or instead must it be urged by answer as an affirmative defense to be proved at the trial of the merits?;

II. Is parol evidence permissible to prove that the plaintiffs signed the releases only because of error, so that therefore the releases are not binding?

I.

Can the defense of extinguishment of an obligation be raised by a peremptory exception and tried separately from the trial on the merits?

The plaintiffs filed peremptory exceptions some six months after they had filed answers of general denial. The pleading was captioned 'exceptions of no cause or right of action and plea of res judicata'. These exceptions were fixed for hearing preliminarily to any fixing for trial on the merits.³

The peremptory exceptions were based upon form 'releases' signed by the plaintiffs. The instruments were addressed to the Louisiana Department of Public Safety and stated that the plaintiffs had released Rudisill from claims arising from the accident of March 16, 1965.

The defense to the suit raised by these exceptions is, technically, the extinguishment of the obligations by a voluntary remission of the debt. As will be shown more fully below, this defense is distinguishable from the defense that the suit is barred by a compromise.

The plaintiffs-appellants contend that this defense cannot be raised by peremptory exception but only by pleading it by the answer as an affirmative defense. If this is the case, the plaintiffs suggest, then the issue cannot be tried in limine by a hearing of the exceptions but instead can only be resolved after full trial of this and all other issues of the merits of the suit.

The plaintiffs-appellants' contention is essentially based on LSA-CCP Art. 1005. Relevantly, this enactment provides that the defendants 'answer shall set forth affirmatively * * * Extinguishment of the obligation in any manner, * * * transaction or compromise, and any other matter constituting an affirmative defense . * * *' The plaintiffs insist: (a) that, since the article provides that such affirmative defenses 'shall' be pleaded by the answer, then they may not be raised separately by exception to be tried preliminarily to trial on the merits; and (b) that, at any rate, the defense of extinguishment of the obligation may not be raised by peremptory exception instead of by answer.

As to (a), we have already held to the contrary in Bowden v. State Farm Mutual Automobile Ins. Co., La.App. 3 Cir., 150 So.2d 655. There we noted that, by the peremptory exception of 'res judicata', LSA-CCP Art. 927(2), a party may raise the defense that the suit is barred by a written compromise, even though such is one of the affirmative defenses specifically listed by LSA-CCP Art. 1005. We noted that, in context, that Code provision simply means that, if a special defense Is pleaded in the answer, it cannot be pleaded by a mere general denial but instead must be set forth affirmatively.

As to contention (b), however, we ultimately conclude that the plaintiffs are correct in their contention that the defense of 'extinguishment of the obligation' cannot be raised by the peremptory exceptions filed by the defendants in this case (1) of res judicata, (2) of no right of action, and (3) of no cause of action.

(1) The exception of res judicata.

At the hearing, over the plaintiffs' objection, Tr. 51, the defendants introduced 'releases' executed by the plaintiffs Bielkiewicz and Laborde respectively on forms furnished by the Department of Public Safety of the State of Louisiana. These instruments were in the form of a statement directed to the Department of Public Safety and signed by a plaintiff alone. Each 'release' stated that the undersigned had released Rudisill 'from all claims and causes of action' arising from the accident March 16, 1965. Neither instrument on its face showed any consideration having been paid or exchanged for the release.

The exception of res judicata is a peremptory exception which must be specially pleaded, LSA-CCP Art. 927, on the trial of which evidence may be introduced, LSA-CCP Art. 931. The plaintiff against whose suit the exception is directed need not file replicatory pleadings, since all new matter alleged by the exception is considered denied or avoided by him. LSA-CCP Art. 852.

Res judicata is based upon the conclusive legal presumption of the 'the thing adjudged' previously between the same parties; it is ordinarily based upon a final judgment. LSA-Civil Code Articles 2285, 2286, 2287, 3556(31). However, persons may also prevent or put an end to a law-suit by adjusting their differences by mutual consent and entering into a written 'transaction' or 'compromise'. LSA-C.C. Article 3071. In this event, the transaction or compromise has 'between the interested parties, a force equal to the authority of things adjudged' LSA-C.C. Article 3078. See Comment, Compromise in Louisiana, 14 Tul.L.Rev. 282 (1940).

In Louisiana practice, the defense that a suit is barred by a valid written compromise may be raised by an exception of res judicata and tried separately in advance of trial on the merits. Bowden v State Farm Mut. Auto. Ins. Co., La .App. 3 Cir., 150 So.2d 655. If so, the plaintiff against whose action the exception is directed may introduce evidence to prove error or fraud, LSA-C.C. Arts. 3073, 3079, without being under any necessity to file replicatory pleadings, LSA-CCP Art. 852, McNabb v. Foodtown, Inc., La.App. 1 Cir., 143 So.2d 144, or a prior independent action to annul the compromise, Moak v. American Automobile Ins. Co., 242 La. 160, 134 So.2d 911.

In the present case, however, the instrument relied upon--the Department of Public Safety (DPS) release form--cannot be considered to be a written compromise entitled to the binding force of the thing adjudged. A unilateral 'release', whereby without any shown consideration one party receives nothing in exchange for the release of his claim, simply does not meet the legal requirements of a valid compromise which is res judicata between the parties (see Haley v. Badon, La.App. 4 Cir., 98 So.2d 109):

A compromise is defined in LSA-C.C. Art. 3071 as an agreement by which the parties adjust their differences to prevent or to put an end to a law suit. Collier v. Administrator, Succession of Blevins, La.App. 4 Cir., 136 So.2d 774. A compromise is a bilateral contract . 'When one party has all to gain and nothing to lose, no compromise results.' Comment, Compromise in Louisiana, 24 Tul.L.Rev . 282, at 285 (1940). Green v. National Life & Acc. Ins. Co., La.App.Orl.Cir., 183 So. 604.

In some cases, a release may indeed be considered a compromise and therefore the basis for a peremptory exception. See, e.g., cases cited in Bowden v. State Farm Mut. Auto. Ins. Co., La.App. 3 Cir., 150 So.2d 655. However, in all cases found, there was something given in exchange for the execution of the release, either a payment of money, Bowden itself, or a mutual release, Haley v. Badon, La.App . 4 Cir., 98 So.2d 109 (relied upon by the trial judge). See also Wyatt v. Maryland Cas. Co., La.App. 2 Cir., 160 So.2d 383.

In no case that we have located has any court held that a DPS release by itself may be considered a compromise, upon the sole basis of which the peremptory exception of res judicata should be sustained. The cases relied upon by the defendants-appellees as indicating to the contrary are distinguishable on that account.

In Griffin v. Aetna Casualty & Surety Co., La.App. 3 Cir., 189 So.2d 324, the question at issue was whether the insureds could recover against their own liability insurer where they had executed a DPS release and Accepted an additional sum by check endorsed by them and accepted as full release; we simply held this constituted a 'settlement' intended to release the trotfeasors, which defeated (under a settlement-prohibition clause) the insureds' right to recover from their own insurer. In Haley v. Badon, La.App.Orl., 98 So.2d 109, although the court noted that the execution of mutual releases by the two parties to an accident might for that reason be considered valid consideration each for the other, the court nevertheless based its decision on a holding that the DPS releases were voluntary remissions and not compromises. Cf. also, American Bankers Insurance Co. v. Costa, La.App., 107 So.2d 76.

We therefore conclude that the exception of res judicata must be overruled, because the unilateral 'release' executed herein by each plaintiff without shown or proved consideration does not constitute a binding bilateral compromise which may be the basis of res judicata.

(2) The exception of...