Ramp v. St. Paul Fire & Marine Ins. Co.

• Decision Date: 06 November 1972
• Docket Number: Nos. 51943 and 51972,s. 51943 and 51972
• Citation: 269 So.2d 239,263 La. 774
• Parties: , 55 A.L.R.3d 967 John J. RAMP, Jr., et al. v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY et al.
• Court: Louisiana Supreme Court

Page 239

269 So.2d 239

263 La. 774, 55 A.L.R.3d 967

John J. RAMP, Jr., et al. v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY et al.

Nos. 51943 and 51972.

Supreme Court of Louisiana.

Nov. 6, 1972.

William F. Wessel, New Orleans, for plaintiffs-applicants.

Lemle, Kelleher, Kohlmeyer, Matthews & Schumacher, H. Martin Hunley, Jr., New Orleans, for defendants-respondents.

BARHAM, Justice.

Plaintiffs, four of the five children of John J. Ramp, Sr., brought this action in tort for damages allegedly sustained because attorneys who represented them earlier in their father's succession proceedings were negligent. The defendants are those two attorneys and their liability insurer for errors and omissions, St. Paul Fire and Marine Insurance Company. The trial court dismissed plaintiffs' suit. On appeal the Fourth Circuit reversed, finding negligence on the part of the attorneys, casting all parties defendant for damages in the sum of $2250.00, and casting the defendant attorneys for return of a $200.00 legal fee. La.App., 254 So.2d 79. We granted certiorari.

The present litigation arose out of matters decided in Succession of Ramp, 252 La. 660, 212 So.2d 419. We there set out the pertinent facts, as follows:

'John J. Ramp, Sr., died testate in 1965, survived by his third wife, Mildred Machin Ramp, and by four children of a second marriage and one child of a first marriage. The decedent's will attempted to give the usufruct of all of his property to his third wife, who was also named executrix, bequeathed the disposable portion of his estate to certain named legatees, and provided: '* * * I will and bequeath the forced portion of my estate to all of my children, share and share alike, subject to the usufruct in favor of my wife.'

'After the succession was opened and Mrs. Mildred Machin Ramp confirmed as testamentary executrix, the four children of decedent's second marriage filed suit against the executrix to annul the will, primarily alleging testamentary incapacity. Following negotiations concerning this attack upon the will, the executrix and these four forced heirs entered into a compromise agreement. However, the contract of compromise signed by the parties not only sought to dismiss the nullity suit with prejudice but attempted to bind the four forced heirs 'to accept the succession of their father in accordance with the terms and conditions stated in his last will * * *' and 'to file no further opposition to or contest of decedent's will on any grounds whatsoever'. An inconsequential amount when compared to the value of decedent's estate was paid to these heirs by the succession in the compromise agreement. After the filing of a joint petition and advertisement, the district court approved the compromise insofar as it dismissed the suit to annul the will.

'In response to a later rule filed by the executrix asking the heirs to show cause why they should not be put in possession of decedent's property in accordance with the terms of the will, the forced heirs filed opposition (through counsel other than the defendants in this suit) on the ground that the dispositions of the will impinged upon their legitime, in contravention of Civil Code Article 1493. Decedent's third wife is not benefited by Article 916 of the Civil Code, and it is apparent that any attempt to burden the legitime of the children with a usufruct in her favor does in fact impinge upon their forced portion since the will made a specific bequest of the disposable portion of the decedent's estate.

'The trial court dismissed the opposition of the four forced heirs who had been parties to the compromise agreement, and placed them in possession in accordance with the will and subject to the third wife's usufruct. The trial court, however placed the child of the first marriage, who had not been a party to the lawsuit or the compromise, into full possession of her forced portion.

'On appeal by all five children the Court of Appeal, Fourth Circuit, reversed the judgment of the lower court in part, holding that the four children of the second marriage did not have to accept their forced portion subject to the usufruct in favor of the third wife. See (La.App.,) 205 So.2d 86. The Court of Appeal held that the compromise agreement tended to divide the succession and was therefore an act of partition which was subject to rescission for lesion beyond one-fourth, under Civil Code Articles 1398 and 1402. We granted certiorari to determine whether these articles are applicable.'

We held in that case that the Court of Appeal had reached the correct result, but that it had incorrectly applied the law since the contract or agreement could not be a partition when one of the forced heirs and at least two of the testamentary legatees were not parties. We determined that the contract was one of compromise limited to a dismissal of the nullity suit pending against the succession, saying: 'This, then, is not a compromise between a Legatee and some of the heirs, but it is simply a compromise by the Succession through its representative of a suit and claim of some of the forced heirs. * * *' (Emphasis here and elsewhere supplied.)

In reforming the contract to accomplish that which could be effectuated between the parties to that agreement, we struck two clauses from the contract which, if valid, would have forced the four heirs who executed it to accept the succession in accordance with the terms of the will and to file no further opposition to the will on any grounds whatever.

It is argued by the defendants in the present matter that although it was error to include this waiver in the compromise agreement, plaintiffs are not entitled to damages. They urge that since these clauses were struck from the agreement and plaintiffs were placed in possession of their legitime free from the usufruct of the third wife, the plaintiffs suffered no damage.

For an understanding of the case now before us, it is necessary to recount in some detail the dealings of the plaintiffs with the defendant attorneys, Steven R. Plotkin and Joseph W. Nelkin. These plaintiffs consulted Plotkin concerning their rights in the succession of their father. After a brief discussion Plotkin referred them to his partner, Nelkin, who he said specialized in succession work. After several meetings Nelkin filed a suit attacking the testamentary capacity of the plaintiffs' deceased father. Nelkin testified that he was handling the succession matters step by step, proceeding first with the attack upon the will itself which would, if successful, give the plaintiffs and the fifth Ramp child the right to the entire estate, and that if this was unsuccessful, he would then proceed to a second step of asserting forced heirship. According to his testimony, he informed his clients that he planned to handle the matter by proceeding in stages, but he never explained, in response to their questions, the right of the usufructuary or the effect of the usufruct. Nelkin, becoming convinced that the attack on the will would be unsuccessful, proposed a settlement, but he insists that he intended the compromise to affect only the nullity proceeding. The clients, to the contrary, insist that they were told At all stages of discussion preceding the compromise agreement that they were compromising all their rights, and that they were informed that only upon the death of the third wife could they receive full ownership of their legitime.

Plotkin and Nelkin dissolved their partnership before the compromise agreement was drafted or presented for execution. Plotkin kept these plaintiffs as clients, and Nelkin was, according to his testimony, totally disassociated from any representation of them at that time. The compromise agreement was drawn by the attorney for the executrix and forwarded to Nelkin. After examining the instrument Nelkin sent it to Plotkin with the recommendation that the plaintiffs be advised to execute it as written. According to Plotkin's testimony, he merely looked at the document to make sure it contained the amount of the stipulated settlement and the signatures of his clients. He testified: '* * * As to the detailed terms of the release I did not read them nor could I have any recollection of discussing the detailed terms which I now later know, of course, that this lawsuit is based upon innocuous statement in the release which led to the litigation that I did not apparently observe or explain to them.'

According to the plaintiffs' repeated statements, they were told when they Signed this agreement that they could not get possession of their forced portion of the estate in full ownership until the third wife died. Plotkin did not deny telling them this. Indeed, he excuses himself by saying that succession law is a field in which he did not specialize.

A letter written to all of the plaintiffs by Plotkin shortly after the dismissal of the nullity suit under the compromise agreement clearly shows that Plotkin believed that the compromise (for which each of the plaintiffs received $200.00 and for which he received $200.00 as attorney) was in full settlement of All of their succession rights, including the forfeiture of their right to their legitime free from the usufruct of the third wife. The letter reads:

'Mesdames and Gentlemen:

'I have been contacted by Mr. Maurice Burk, attorney for the Succession of John J. Ramp, Sr., requesting that all of the heirs or legatees Join in the petition for possession and accept service on the final account.

'I have reviewed the pleadings and they are in proper order.

'Therefore, it is necessary that each of you make an appointment with Mr. Maurice Burk, 501 Security Homestead Building, 219 Carondelet Street, New Orleans, Louisiana, to sign the necessary papers Which will complete this matter.

'Very truly yours,

s/d 'Steven R. Plotkin

'STEVEN R. PLOTKIN'

The principal issue which we must decide is whether the acts or omissions of the attorneys Plotkin and...