Tutorship of Witt

• Decision Date: 03 November 1999
• Docket Number: No. 99-646.,99-646.
• Citation: 747 So.2d 1142
• Parties: TUTORSHIP OF Larry WITT.
• Court: Court of Appeal of Louisiana — District of US

Page 1142

747 So.2d 1142

TUTORSHIP OF Larry WITT.

No. 99-646.

Court of Appeal of Louisiana, Third Circuit.

November 3, 1999.

COPYRIGHT MATERIAL OMITTED

Chris Smith, III, Cut Off, Steven Franklin Griffith, Destrehan, for Helen Witt, et al.

Jay Christopher Zainey, Metairie, John Claiborne Young, Baton Rouge, for State of Louisiana, DOTD.

BEFORE: THIBODEAUX, COOKS and WOODARD, Judges.

THIBODEAUX, Judge.

Helen Witt, as natural tutrix of Larry Witt, executed a compromise agreement with Harold Bonesio, Thomas Bonesio, State Farm Mutual Insurance Company (hereinafter "State Farm") and the United States, settling a civil suit for personal injuries arising from a 1972 automobile accident. Since the 1973 release did not contain a reservation of rights, the agreement released all solidary obligors from liability for the accident. In 1978, the release was reformed to reserve rights against parties not specifically released. The Witts and the Bonesios seek to bring a tort suit against the State of Louisiana, through the Department of Transportation and Development (hereinafter "DOTD"), for injuries sustained in the accident. The tutorship and tort suits have meandered through the Louisiana judiciary system for litwenty-five years as the plaintiffs oscillated between the two suits in an effort to revive the released claims. The suits were consolidated for appeal.

Plaintiffs appeal the judgment of the trial court sustaining the DOTD's exceptions of Res Judicata and Lis Pendens based on the original release and prior judgments. For the following reasons, we affirm.

I. ISSUES

The issues on appeal are:

(1) whether the trial court erred in holding that a 1973 compromise agreement lacking a reservation of rights discharged the settling parties' claim against all joint tortfeasors arising from the accident?

(2) whether the trial court erred in concluding that parties to a compromise agreement may not amend that agreement to include a reservation of rights in order to express their true intent and prevent the unjust enrichment of a released tortfeasor?

(3) whether the trial court erred in permitting the DOTD to assert the peremptory exception of res judicata since the DOTD was not a party to the original release?

II. FACTS

The material facts are not in dispute. On September 10, 1972, Larry Witt, then a minor, sustained personal injuries in a onecar accident on La. Hwy. 1212 in Leesville, Louisiana while a guest passenger in a car driven by Thomas Bonesio. The car, a Subaru, was owned by Harold Bonesio and insured by State Farm.

Mrs. Helen Witt, mother of Larry Witt, was confirmed as Natural Tutrix of Larry Witt on September 6, 1973. Mrs. Witt, acting on her own behalf and on behalf of Larry Witt, entered a compromise agreement with Thomas Bonesio, his father, Harold Bonesio, State Farm and the United States of America (which had provided medical treatment to Larry Witt). The "Act of Compromise, Receipt and Release" provided that State Farm would pay the Witts $9000 and would pay the United States $1000 in exchange for the release of all claims against the Bonesios and State Farm arising from the accident. The release did not contain a reservation of rights against other parties and was homologated in the Tutorship proceeding on September 6, 1973.

Also on that date, the Witts and the Bonesios filed a tort suit against the car manufacturer, Subaru of America, and the State of Louisiana, through the Department of Highways, the predecessor to the DOTD. On February 9, 1978, the DOTD filed a Motion for the Production of the release and receipt. Based on the release, the DOTD orally raised the exception of no right of action.

In order to defeat the exception, plaintiffs filed a Motion to Amend in the tutorship proceeding to amend the release to include a clause reserving their rights against other parties. All parties to that proceeding asserted that the modification would reflect their true intentions and would not affect the rights nor diminish the protection afforded any parties to the agreement. The district court granted the motion, amending the release to include the following language: "Mrs. Helen G. Witt, natural tutrix of the minor, Larry Witt and the United States of America reserve all rights against all other parties not specifically released by this agreement." The DOTD was not a party to this proceeding.

Plaintiffs introduced the amended release in the tort suit. In October 1978, the DOTD filed peremptory exceptions of no right of action, no cause of action and res judicata in the tort case. The judge who heard the exceptions in January 1979 died before rendering judgment. The case lingered in the district court until the deceased judge's docket was reassigned. The new judge notified all parties that hearings would be heard on all outstanding matters and that he considered the Witt cases submitted on January 10, 1980. Following a hearing on the exceptions, the district court sustained the DOTD's exceptions in the tort case in January 1996, ruling that the amended release had no effect.

The plaintiffs appealed. The Third Circuit originally affirmed but reversed on rehearing. The Louisiana Supreme Court reversed in 1998, affirming the trial court judgment that since the original release did not contain a reservation of rights as required by then-existing law, the DOTD's exceptions should be sustained. See Witt v. Subaru of America, 97-2321 (La.2/20/98), 707 So.2d 435.

Following the Supreme Court's reversal in the tort case, the plaintiffs amended their petition in the tutorship proceeding, requesting the court recognize the amended release and make it applicable in the tort proceeding. The DOTD filed exceptions of res judicata and lis pendens. An evidentiary hearing was held during which the plaintiffs introduced evidence of mutual mistake in the drafting of the original release and argued that their intent had been to reserve their rights against other parties. In November 1998, the district court again maintained the DOTD's exceptions, holding that the DOTD was discharged by the original release. Plaintiffs then filed the same motion in the tort proceeding to which the DOTD responded with the same exceptions. The district court rendered the same ruling, sustaining the DOTD's exceptions. The cases were consolidated and plaintiffs brought this appeal. We are also rendering judgment in the companion case on this date. See Witt v. Subaru of America, 99-647, (La.App. 3 Cir. 11/3/99); 747 So.2d 1142.

III.

LAW AND DISCUSSION

Standard of Review

Res judicata is a peremptory exception which may be pleaded at any time in the proceeding. La.Code Civ.P. arts. 927(2) and 928. Lis pendens is a dilatory exception that must be pleaded before or in the answer. La.Code Civ.P. arts. 925(A)(3) and 928(A). When pleaded before or in the answer, the exceptions should be tried and decided before trial of the case. La.Code Civ.P. art. 929. An appellate court must review the entire record to determine whether the factual conclusions of the trial court were manifestly erroneous. See Geen v. Geen, 95-984 (La. App. 3 Cir. 12/27/95); 666 So.2d 1192, writ denied, 96-0201 (La.3/22/96); 669 So.2d 1224.

Effect of Original Release on the DOTD

Plaintiffs seek to bring a tort suit against the DOTD for alleged negligence contributing to the injuries. Plaintiffs assert that although the DOTD was discharged by the original release, that release was amended to include a reservation of rights thereby restoring their claims against the DOTD. As a result of the amendment, plaintiffs assert that the DOTD has not been discharged and could be liable for one-half of any damages judgment, since the amended release remitted the virile share owed by the Bonesios. The DOTD responds that the original release is effective and, according to its terms, the plaintiffs relinquished any claims against the DOTD for the accident and should not be permitted to use the amended release to revive these extinguished claims.

A transaction or compromise is an agreement between two or more persons who adjust their differences by mutual consent to prevent or end a lawsuit. La. Civ.Code art. 3071. Tutors of minors may enter compromise agreements on the minor's behalf upon authorization by a judge. La.Civ.Code art. 3072. Here, plaintiffs negotiated a valid compromise agreement that was approved by the district court in September 1973. That agreement provided, in part:

That, by her acceptance of the aforesaid sums, the said HELEN G. WITT, both individually and as natural tutrix of LARRY WITT, and for and on behalf of the said minor, does forever discharge the said Tommy Bonesio, Harold A. Bonesio and State Farm Mutual Automobile Insurance Company from any and all claims of every nature, intending this to be a full and complete release. That she does further acknowledge that the sum of NINE THOUSAND AND NO/ 100 ($9,000.00) DOLLARS has been paid to her by State Farm Mutual Automobile Insurance Company, not as an admission of liability, but as a compromise of disputed claims.

The issue thus becomes what, if any, effect this release had on the DOTD, an alleged solidary obligor?

At the time of the accident, when the consolidated suits were filed and when the suits were considered submitted following the district judge's death, La.Civ.Code art. 2203 (1870), the predecessor to article 1803, provided:

The remission or conventional discharge in favor of one of the codebtors in solido, discharges all the others, unless the creditor has expressly reserved his right against the latter.

In the latter case, he cannot claim the debt without making a deduction on the part of him who has made the remission.

(Emphasis added.)

Joint tortfeasors are solidarily liable for damages caused by their concurrent negligence. La.Civ.Code art. 1800; Reid v. Lowden, 192 La. 811, 189 So. 286, 287 (1939). The law under La.Civ.Code art. 2203 was well-settled that "the release of one solidary...