Kleiner v. Ciko

• Court: Court of Appeal of Louisiana
• Writing for the Court: ELLIS
• Citation: Kleiner v. Ciko, 417 So.2d 54 (La. App. 1982)
• Decision Date: 29 June 1982
• Docket Number: No. 14921,14921
• Parties: Arthur KLEINER and Richard A. Kleiner v. Laura Elizabeth Rist, wife of/and George Jules CIKO.

Page 54

417 So.2d 54

Arthur KLEINER and Richard A. Kleiner v. Laura Elizabeth Rist, wife of/and George Jules CIKO.

No. 14921.

Court of Appeal of Louisiana First Circuit.

June 29, 1982.

Writ Denied Oct. 1, 1982.

Joe Anderson, Slidell, for plaintiffs, appellees.

Robert J. Caluda, New Orleans, for defendants, appellants.

Before ELLIS, PONDER and SAVOIE, JJ.

ELLIS, Judge:

This is a suit by Arthur Kleiner and Richard A. Kleiner against Laura Elizabeth Rist, wife of, and George Jules Ciko, to set aside a sale from their deceased mother, Anne Elizabeth Daws Kleiner, to Mr. and Mrs. Ciko. On the day fixed for the trial, June 22, 1979, the following colloquy took place in open court:

"Mr. Anderson: 'May it please the Court, Your Honor, the parties in this matter, entitled Kleiner versus Ciko, number 52,849 of the docket of this Court, have reached a settlement accordingly. Arthur and Richard A. Kleiner shall pay to Elizabeth Risk, wife of and George J. Ciko, the sum of thirteen thousand dollars in cash in consideration of the transfer by Mr. and Mrs. Ciko to them of the property forming the subject of this lawsuit.'

"The Court: 'Who is to bear the cost?'

"Mr. Anderson: 'The cost of this proceeding will be borne by the respective parties, as the costs were incurred. The costs of the act of sale transferring the property will be borne by the Kleiners. All costs of the act of sale.'

"The Court: 'Is that the settlement that has been reached, Mr. Fritchie?'

"Mr. Fritchie: 'That is correct, Your Honor.'

"The Court: 'Let that settlement then be made the judgment of this Court.' "

Apparently, Mrs. Ciko was not pleased with the settlement, and so advised her daughter, who, in turn, consulted an attorney other than the one who represented Mrs. Ciko at the time of the above settlement. The second attorney wrote a letter to Joe Anderson, who represented the Kleiners, advising him of his representation of Mrs. Ciko, and stating that she "has rejected the settlement offered." Mr. Anderson received the letter on July 6, 1979.

Thereafter, Mr. Anderson prepared a judgment based on the above settlement, and presented it to the trial judge, making a full disclosure of the circumstances above outlined. On the morning of July 9, prior to the time the judgment was signed, Mr. Anderson encountered the Cikos' original attorney, but did not mention to him that he was going to try to have a judgment signed. After a new trial was denied, Mr. and Mrs. Ciko filed a petition for the nullity of the judgment signed by the trial judge, based on the allegation that the judgment was based on an oral compromise, which had been rescinded by Mrs. Ciko, and that Mr. Anderson was aware of the rescission. The petition was later amended to add the allegation that Mrs. Ciko was not capable of giving informed, knowing and intelligent consent to the compromise.

After trial on the merits of the nullity petition, judgment was signed rejecting the demands of Mr. and Mrs. Ciko, and they have appealed.

In this court, defendants allege that the trial judge erred in finding that there was a binding compromise as a result of the settlement reached on the trial date; that the court erred in finding that the circumstances under which the judgment was signed did not constitute ill practices; that the trial court erred in finding that Mrs. Ciko was competent to enter into a compromise; and that this nullity action is not barred by a "judicial confession" as a result of the minute entry made of the compromise agreement.

Defendants urge the nullity of the judgment on two basic grounds: first that the judgment was obtained by fraud or ill practice on the part of plaintiffs' attorney in the manner in which he had the judgment signed after learning that defendants had withdrawn their consent to the settlement; and ill practice on the part of the trial judge in signing the judgment, rendering the judgment null under Article 2004 of the Code of Civil Procedure.

Second, it is argued that the judgment is null because rendered against an incompetent, under Article 2002 of the Code of Civil Procedure.

The first legal issue presented is whether or not the colloquy in open court on June 22, 1979, resulted in a confession of judgment, binding on all parties, or was a compromise, revocable by any party because not reduced to writing and signed.

Article 2291 of the Civil Code provides:

"The judicial confession is the declaration which the party, or his special attorney in fact, makes in a judicial proceeding.

"It amounts to full proof against him who has made it.

"It can not be divided against him.

"It can not be revoked, unless it be proved to have been made through an error in fact.

"It can not be revoked on a pretense of an error in law."

In Martin v. Holzer Sheet Metal Works, Inc., 376 So.2d 500 (La.1979), the court said:

"A confession of judgment precluding an appeal need not be in writing or in a particular form. It must, however, consist of an admission by a party in the proceedings in the trial court of the validity of his opponent's claim in such a way as to leave no issue to be tried."

In the Martin case, the court stated that it was called upon to decide whether oral consent to judgment in open court constitutes a confession of judgment. In that case, a settlement was reached before trial, and the trial judge dictated the terms of the judgment agreed to into the record, with all counsel assenting thereto for the record. The court found that these circumstances were sufficient to constitute a confession of judgment, rendering the case not appealable under Article 2085 of the Code of Civil Procedure.

In the later case of Bourgeois v. Franklin, 389 So.2d 358 (La.1980), the court expressed the problem facing it as follows:

"In a tort suit, where the attorneys for plaintiff and defendant, ostensibly with the assent of their respective clients, recite in open court the fact and...