Succession of Hester B. Wilson

• Court: Louisiana Court of Appeal
• Decided: October 9, 2013
• Docket: CA-0013-0164
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

13-164

SUCCESSION OF HESTER B. WILSON

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APPEAL FROM THE SEVENTH JUDICIAL DISTRICT COURT PARISH OF CATAHOULA, NO. 26,730 HONORABLE LEO BOOTHE, DISTRICT JUDGE

PHYLLIS M. KEATY JUDGE

Court composed of Sylvia R. Cooks, Marc T. Amy, and Phyllis M. Keaty, Judges.

AFFIRMED.

Gregory B. Upton Leslie E. Halle Gold, Weems, Bruser, Sues & Rundell Post Office Box 6118 Alexandria, Louisiana 71307-6118 (318) 445-6471 Counsel for Appellee: Succession of Hester B. Wilson

Brian K. Thompson Jessica Firment Law Offices of Brian K. Thompson, A.P.L.C. 2915 Jackson Street Alexandria, Louisiana 71301 (318) 473-0052 Counsel for Appellant: Roscoe Wilson KEATY, Judge.

Roscoe Wilson (Roscoe), an intestate heir of Hester B. Wilson (decedent),

appeals from a judgment in favor of the Succession of Hester B. Wilson (the

Succession) granting its motion to enforce compromise agreement. For the

following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The decedent died on May 4, 2011. She was survived by her two sons,

Roscoe and J. Michael Wilson (Michael).1 On October 21, 2011, Michael and his

son, Clifton Carl Wilson, Jr., (Cliff), instituted this suit by filing a petition to

present purported testament, for declaration of invalidity, and for appointment of

administrator. The trial court signed an order on October 27, 2011, invalidating

the purported January 25, 2007 notarial testament of the decedent, appointing Cliff

as administrator of the Succession after completion of the formalities normally

associated therewith, and ordering Cliff to prepare and file a sworn detailed

descriptive list of the assets and debts of the Succession.

The Succession filed the detailed descriptive list on May 8, 2012. Listed

therein as an asset of the Succession was an April 2001 loan due from Roscoe in

the amount of $151,000. Approximately two months later, the Succession filed a

motion to enforce compromise agreement. According to the motion, a verbal

agreement had been reached on May 17, 2012, between the Succession and

Roscoe’s then-attorney, John Geiger, which was later confirmed by email

correspondence between them dated May 24, 2012. However, on May 29, 2012,

before the settlement documents had been executed, Roscoe informed the attorneys

1 The decedent had a third son, Clifton Carl Wilson, Jr., (Clifton) who predeceased her leaving no children. The decedent’s husband, Clifton Carl Wilson, Sr., also predeceased her. for the Succession that he had fired Mr. Geiger and was in the process of hiring

new counsel.

Several weeks later, Roscoe’s newly-hired-attorney filed a memorandum in

opposition to the motion to enforce compromise agreement. Following a hearing,

the trial court took the matter under advisement. Judgment was rendered on

September 24, 2012, granting the motion and enforcing the compromise agreement.

In conjunction therewith, the trial court ordered Roscoe to execute a receipt for

inheritance, approval of accounts, release and indemnification agreement; a

petition for possession and discharge of administrator; and an act of transfer.

Roscoe now appeals, asserting that the trial court was clearly wrong: 1) in

enforcing the alleged compromise agreement between the parties because it was

not reduced to a writing, or reciprocal writings, signed by both parties; 2) in

allowing parol evidence as proof of the agreement between the parties; and 3) in

finding that Roscoe’s attorney had the authority to bind Roscoe in a compromise

agreement with the Succession.

DISCUSSION

The two-part test for the appellate review of a factual finding is 1) whether there is a reasonable factual basis in the record for the finding of the trial court, and 2) whether the record further establishes that the finding is not manifestly erroneous. If a reasonable factual basis exists, an appellate court may set aside a trial court’s factual finding only if, after reviewing the record in its entirety, it determines the trial court’s finding was clearly wrong. Mixed questions of law and fact are also subject to the manifest error standard of review.

Dozier v. Rhodus, 08-1813, p. 8 (La.App. 1 Cir. 5/5/09), 17 So.2d 402, 407, writ

denied, 09-1647 (La. 10/30/09), 21 So.3d 294

―A compromise is a contract whereby the parties, through concessions made

by one or more of them, settle a dispute or an uncertainty concerning an obligation

2 or other legal relationship.‖ La.Civ.Code art. 3071. ―A compromise shall be made

in writing or recited in open court, in which case the recitation shall be susceptible

of being transcribed from the record of the proceedings.‖ La.Civ.Code art. 3072.

―The purpose of a compromise, therefore, is to prevent or to put an end to litigation.

The essential elements of a compromise are (1) mutual intention of putting an end

to the litigation and (2) reciprocal concessions of the parties in adjustment of their

differences.‖ Rivett v. State Farm Fire and Cas. Co., 508 So.2d 1356, 1359

(La.1987).

[T]he requirement that the agreement be in writing and signed by both parties does not necessarily mean that the agreement must be contained in one document. It would suffice that there be a written offer signed by the offerer and a written acceptance signed by the acceptor, even if the offer and the acceptance are contained in separate writings. In other words, where two instruments, when read together, outline the obligations each party has to the other and evidence each party’s acquiescence in the agreement, a written compromise agreement, as contemplated by La.C.C. art. 3071, has been perfected.

Felder v. Georgia Pac. Corp., 405 So.2d 521, 523-24 (La.1981).

The only witness to testify at the hearing on the Succession’s motion to

enforce compromise agreement was Leslie Halle, an attorney who represented the

Succession. Roscoe failed to offer any testimony or evidence at the hearing.

Ms. Halle testified that she and Mr. Geiger had engaged in settlement negotiations

regarding Roscoe’s share of the Succession and the debt that he allegedly owed to

it. On May 5, 2012, she sent a letter to Mr. Geiger enclosing the detailed

descriptive list and stating the Succession’s position that the $151,000 distributed

to Roscoe in April 2001 was a loan which became due upon the death of the

decedent.2 In the letter, the Succession offered to settle the matter if Roscoe would

2 The May 7, 2012 letter from Ms. Halle to Mr. Geiger was accepted into evidence as Movant 1.

3 accept $5,000 and execute a receipt and release and any documents necessary to

close the Succession in exchange for the Succession’s agreement to not pursue

collection of the approximately $28,421 owed to it by Roscoe. Ms. Halle stated

that Mr. Geiger called to inform her that Roscoe wanted to settle the Succession for

$15,000. After discussing the matter with her client, she called Mr. Geiger and

raised the settlement offer to $7,500. In response, Mr. Geiger told her that he ―felt

confident‖ that Roscoe would agree to settle the matter for $10,000. Ms. Halle

then called Mr. Geiger to inform him that the Succession agreed to pay Roscoe

$10,000 in exchange for his executing the appropriate documents to close the

Succession, which she would prepare. Ms. Halle testified that there were four

aspects to the agreed upon settlement. First, Roscoe would transfer the interest in a

house he received from his father’s succession to his brother Michael.3 Second,

Michael would receive all the remaining property belonging to the Succession.

Third, the Succession administrator agreed to not pursue collection of the $28,000

debt Roscoe owed the estate. Finally, Roscoe would receive $10,000. In response

to a question posed by the trial court as to whether Mr. Geiger told her that he had

discussed the matter with Roscoe and that Roscoe had authorized him to accept the

$10,000 settlement, Ms. Halle responded, ―Yes, sir.‖ She elaborated that she had

received another call from Mr. Geiger later that day stating that Roscoe agreed to

settle the matter for $10,000.

Ms. Halle testified that she sent Mr. Geiger an email on May 24, 2012,

attaching a receipt and release, petition for possession and discharge of

3 At the hearing, Ms. Halle referred to Roscoe’s brother as ―Mike.‖

4 administrator, and a judgment of possession.4 Later that day, she received an email

from Mr. Geiger informing her that ―the documents were fine,‖ and that Roscoe

would contact her to execute the documents after he reviewed the deed of transfer.5

Ms. Halle testified that the deed of transfer was going to be a standard deed and

that it could be a quit claim deed. Ms. Halle stated that she sent Mr. Geiger

another email the next morning requesting Roscoe’s mailing address and marital

status in order for her to complete the transfer documents. 6 Later that day, she

received a call from a man who identified himself as Roscoe Wilson. He gave her

the name of his wife and his address and asked her when the documents would be

ready for him to sign. Ms. Halle testified that she told Roscoe that she would

contact him after the act of transfer had been reviewed by Mr. Geiger. According

to Ms. Halle, at no time in their May 25, 2012 conversation did Roscoe say that he

had any disagreement with the documents. The next week, Roscoe called to let her

know that he had hired a new attorney.

Assignment of Error Number 1

Roscoe contends that the trial court erred in enforcing the alleged

compromise agreement because it was not reduced to a writing, or reciprocal

writings, signed by both parties evidencing their obligations under and their

acquiescence to the alleged agreement. More specifically, Roscoe claims that the

documents attached to Ms. Halle’s May 24, 2012 email do not clearly state that the

Succession would not pursue collection of the $151,000 debt that he allegedly

4 The May 24, 2012 email from Ms. Halle to Mr. Geiger, along with the attachments, was accepted into evidence as Movant 2. 5 The May 24, 2012 email from Mr. Geiger to Ms. Halle was accepted into evidence as Movant 3. 6 The May 25, 2012 email from Ms. Halle to Mr. Geiger concerning the transfer documents was accepted into evidence as Movant 4.

5 owed to it. He submits that the emails exchanged in this matter ―contemplate

further review and negotiation.‖ Roscoe contends that because his signature was

needed to complete the deed of transfer and because his attorney reserved the right

to review the deed of transfer, the trial court should not have found that he had

entered into a valid compromise agreement.

The Succession counters that it submitted a written offer to Roscoe, which

his attorney accepted in writing. The Succession contends that the emails between

the attorneys, along with the documents attached thereto, succinctly set forth the

terms of the settlement agreement and each party’s obligations under that

agreement. With regard to Roscoe’s argument that the settlement documents did

not state that the Succession would not seek collection of the $151,000 debt, the

Succession points out the settlement documents clearly state that once Roscoe

receives $10,000 as his share of the Succession and Michael receives the remaining

assets in the Succession as well as the transfer of the ownership Roscoe has in the

immovable property that he received in his father’s succession, the administrator

would be discharged and no longer entitled to seek collection of the debt that

Roscoe formerly owed the Succession. Finally, the Succession submits that

because the parties clearly agreed to the transfer of property from Roscoe to

Michael, the terms of deed of transfer were not essential to the validity of the

compromise agreement.

Dozier, 17 So.2d 402, involved a suit for partition brought by co-owners of

land allegedly contaminated by a nearby industrial waste disposal facility. On the

eve of trial, NPC Services Inc. (NPC), a company that had purchased all interests

in the property except for that of one of the co-owners, requested that the trial court

take the matter off the docket as a settlement had been reached. When that co-

6 owner later refused to complete the settlement, NPC filed a motion to enforce

settlement. In affirming the trial court’s grant of the motion, the appellate court

noted:

If it were necessary for the party to sign the writing that serves as proof of the agreement, often there would be no basis for enforcement, because generally the attorneys rather than the parties negotiate and contract settlement agreements. In fact, frequently the purpose of court intervention in enforcing a settlement agreement is to obtain the signature of a party who has met the contractual legal requirements but refuses to honor the agreement.

Id. at 408. The co-owner in Dozier also argued that the trial court erred in ordering

him to execute documents exceeding the scope of the correspondence between the

parties’ attorneys, especially since he had reserved the right to approve the

settlement deed and contract. The appellate court disagreed, finding that the trial

court did not err in finding that the requirements for an enforceable compromise

agreement had been met, noting that ―[d]ocuments affecting . . . immovable

property . . . will be considerably more intricate than an email.‖ Id.

After review, we conclude that the trial court did not err in finding that the

parties entered into a valid compromise agreement. When read together, the

emails and documents exchanged between the attorneys for the Succession and

Roscoe clearly outline the obligations owed by each of the parties along with the

parties’ mutual intent to put an end to their dispute. Further, that Roscoe’s attorney

reserved the right to review another document, i.e., the deed of transfer, does not

change the fact that the parties had already agreed to all of the elements necessary

to constitute a valid and enforceable settlement. Roscoe’s first assignment of error

lacks merit.

7 Assignment of Error Number 2

Roscoe next contends that the trial court erred in allowing parol evidence,

i.e., the testimony of Ms. Halle, as proof of the agreement between the parties.

Citing La.Civ.Code art. 3073, he further contends that because the settlement

involves a transfer of immovable property, the settlement agreement itself must be

in the form of an authentic act or act under private signature. See La.Civ.Code art.

1839, governing the transfer of immovable property.

The Succession counters that the primary evidence of proof that the parties

entered into a compromise agreement was the emails and attachments thereto

exchanged between the parties. It further submits that while Ms. Halle’s testimony

did address the terms of the settlement, the bulk of her testimony focused on the

negotiations between her and Mr. Geiger that led to the compromise agreement

ultimately reached between them on behalf of their clients. The Succession points

out that while Roscoe did object to Ms. Halle’s testimony as being hearsay, he did

not object to the testimony being inadmissible parol evidence and, thus, waived his

right to challenge the admission of that evidence on appeal. Finally, the

Succession concedes that an instrument transferring immovable property must

meet the form requirements found in La.Civ.Code art. 1839. Nevertheless, citing

Dozier, 17 So.3d 402, it contends that an agreement to transfer immovable

property in the future does not have to be in authentic form or an act under private

signature.

In Dugas v. Modular Quarters, Inc., 561 So.2d 192, 196 (La.App. 3 Cir.

1990) (citation omitted), we observed:

The trial court admitted much testimony by both litigants which may have been classified as parol evidence. . . . However, neither set of litigants objected to the testimony as being parol. Louisiana’s parol

8 evidence rule is not substantive law, but a rule of evidence. Therefore inadmissible parol evidence admitted without objection may be considered by the trial court and the appellate court in reaching a decision. Because there was no objection to the parol evidence, we need not address the question of whether the trial court’s ruling was correct on this issue.

We conclude that the trial court did not err in allowing the testimony of

Ms. Halle as her testimony was not essential to its finding that the parties had

entered into a valid compromise agreement. Further, to the extent her testimony

touched on the terms of the settlement agreement, the trial court did not err in

considering it since Roscoe did not object to its admission on the basis that it was

parol evidence. Finally, like the first circuit held in Dozier, we conclude that ―the

legal requirements for an enforceable settlement agreement were met,‖ despite the

fact that agreement required that the co-owner would have to later sell his interest

in the property at issue. Dozier, 17 So.3d at 410. There is no merit to Roscoe’s

second assignment of error.

Assignment of Error Number 3

In his final assignment of error, Roscoe contends that the trial court erred in

finding that his attorney had the authority to bind him in a compromise agreement

with the Succession. While Roscoe concedes that he hired his former attorney,

Mr. Geiger to represent him in this matter and to negotiate a settlement that was

beneficial to him, he denies that he gave Mr. Geiger the express authority to bind

him to a settlement agreement or that he ratified the acts of Mr. Geiger. Finally,

Roscoe submits that the Succession’s attorneys were not justified in relying on the

apparent authority of Mr. Geiger to bind him to a settlement.

The Succession counters that the evidence supports the trial court’s finding

that Mr. Geiger had the authority to bind Roscoe in a valid compromise agreement.

9 In support of its arguments, the Succession submits that all the settlement

negotiations in this matter were done through the attorneys. The Succession points

to Ms. Halle’s testimony that Mr. Geiger specifically told her that he had discussed

the settlement with Roscoe and that Roscoe had agreed to it and that Roscoe had

called her to see when he could come in and sign the settlement documents.

Accordingly, it did not have to rely on Mr. Geiger’s apparent authority to bind his

client to the settlement. Finally, the Succession notes that, because Roscoe was

represented by an attorney, it was prohibited from directly communicating with

him.

After having reviewed the totality of the testimony and evidence, we cannot

say that the trial court erred in its factual finding that Mr. Geiger had the authority

to bind Roscoe into a valid compromise agreement with the Succession, especially

given Ms. Halle’s unrebutted testimony that Mr. Geiger told her that Roscoe had

agreed to accept the settlement that was reached after a series of offers and counter

offers. Roscoe’s third assignment of error is without merit.

DECREE

For the forgoing reasons, the judgment of the trial court granting the motion

to enforce compromise agreement filed by the Succession of Hester B. Wilson

against Roscoe Wilson is affirmed. All costs of this appeal are assessed against

Roscoe Wilson.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal, Rule 2–16.3.