Preston Payton VS Republic Vanguard Insurance Company, Texas General Agency, and Randy Anny

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO, 2014 CA 1453 PRESTON PAYTON VERSUS REPUBLIC VANGUARD INSURANCE COMPANY, TEXAS GENERAL AGENCY, AND RANDY ANNY Judgment rendered ~ UN 1 5 2015 Appealed from the 23rd Judicial District Court in and for the Parish of Ascension, Louisiana Trial Court No, 96505 Honorable Ralph Tureau, Judge DANIEL FRAZIER, JR. ATTORNEY FOR BATON ROUGE, LA PLAINTIFF-APPELLANT PRESTON PAYTON BRADLEY J. LUMINAIS, JR. ATIORNEY FOR DEFENDANTS-APPELLEES REPUBLIC VANGUARD INSURANCE COMPANY, TEXAS METAIRIE, LA GENERALAGENCY,ANDJOHN WILLIAMS, SR. RANDY T. ANNY IN PROPER PERSON SORRENTO, LA DEFENDANT-APPELLEE BEFORE: PETTIGREW, WELCH, AND CHUTZ, JJ. PETTIGREW, J. In this appeal, plaintiff challenges the trial court1s judgment, granting summary judgment in favor of defendants and dismis~ing his claims against defendants with prejudice. For the reasons that follow, we affirrn .... FACTS AND PROCEDUJ{ AL HISTORY The history of this case dates back to February 2012, when we issued a ruling concerning a judgment rendered in favor of defendants, Republic Vanguard Insurance Company (" Republic Vanguard"), Texas Gen~ral Agency ('' Texas General"), and John Williams, Sr., and against plaintiff, Preston Payton. 1>ayton v. Republic Vanguard Ins. the Co., 2011-0940 ( La. App. 1 Cir. 2/3/12} (unpublished opinion) ( Payton I). While underlying facts of this case are well known to bo~~ t,his court and the parties herein, a brief review of the procedural history that has brqught us to this point is necessary for a complete understanding of the court's analysis that follows. This action commenced on May 2~; .~ 01. 0, . 11 with· a Petition. To Enforce Settlement Agreement/For Damages For Breac.h· Of Agreeni~nt/ And For Statutory Penalties," filed by Mr. Payton to recover settlement proceeds, following a dredge accident that occurred on March 11, 2006. that caused Named as defendants \!Vere Mr. Williams, the owner of the tanker truck the alleged accident; Republic Vanguard, Mr. Williams' insurer; Texas General, Republic Vanguard's adjusting agency; and Randy Anny, who was leasing the gravel pit where the alleged accident took place. According to the record, a tanker truck belonging to Mr. Williams was delivering· fuel to Mr. Payton's dredging operation near Independence, Louisiana, when thetanker·truck piCked up a cable and/or rope securing . . \ ~ . the dredge in the gravel pit, causing the dre.dge t9 $.ink in approximately 45 feet of murky water. Mr. Payton's original petition alleged that the defendants had entered into a settlement agreement with him whereby they agreed to pay him $ 256,714.86 as replacement for his dredge. Mr. Payton asserted that instead of paying him directly, Republic Vanguard and Texas General made the settlement check payable to Mr. Anny, who was allegedly obligated to pay Mr. Payton. 2 However, Mr. Payton maintained, the check used by Mr. Anny to pay him was drawn on an account with insufficient funds to cover the check. Thus, having never received the settlement funds, Mr. Payton sought damages, including the originai settlement amount, loss of income, interest, attorney fees, and litigation costs. Mr. Anny filed an answer to Mr. Payton's petition, generally denying the allegations therein. In addition, Mr. Anny stated that he paid tJ]r .. Payton, by check, $ 256,714.86 " in an attempt to facilitate a compromise" between Mr. Williams and Mr. Payton. In exchange, Mr. Anny was to receive the. insurance. check from Republic Vanguard and Texas General as reimbursement for the money he had paid to Mr. Payton. According to and Mr. Anny, after the settlement agreement was signed, Mr. Payton contacted him informed him that he wanted another dredge instead of- the check. Thus, Mr. Anny claimed, he acquired another dredge of eqi.Jal -or greater value and transferred it to Mr. Payton. Mr. Anny maintained that in exchange for.receipt of the dredge, Mr. Payton had 1 agreed to destroy the check that Mr. Anny had previously given to him. In response to Mr. Payton's petition, Republic Vanguard, Texas General, and Mr. Williams filed a peremptory exception raising the objections of no cause of action, no right of action, and prescription. They alleged that Mr.· Payton had no right of action or cause of action against them as no contractual relationship existed between them and that any delictual action Mr. Payton might have had again.st them and/or Mr. Williams prescribed, as Mr. Payton did not file the present action until more than four years after the underlying dredge accident. The trial court claims against them. sustain~d ' all ' three df' th~,: bbje" Cti6: ns Mr. Payton · appeafed 2 ·~ asserting and'disniissed Mr. Payton's that the release agreement he signed, along with Mr. Anny's personal checkto him, the check from Texas General made payable to Mr. Anny, the letter from Texas· General to its insured that the matter had as he In his answer, Mr. Anny averred that Mr. Payton was fully compensated for the loss of his dredge Mr. Anny's expense. However, Mr. Williams testified in his deposition that Mr. received another dredge at Anny told Anny told Mr. Payton the check was to pay for his dredge. Mr. Williams further testified that Mr. couple of days and then he could cash it. Mr. Payton to hold the check for a 1 2 Payton I. 3 an enforceable been settled, and an affidavit executed by Mr. Williams established settlement agreement between him and defendants. In the alternative, Mr. Payton supporting contended he should have been allowed to amend his petition to allege facts an agency relationship between defendants and Mr. Anny. facts in the On appeal, this court concluded that based on the well-pleaded trial court, Mr. petition, along with the evidence introduced at the hearing before the of contract or Payton failed to state a cause of action against defendants for breach settlement agreement. However, because Mr. Payton's attorney argued that during the agent, this settlement negotiations with Mr. Payton, Mr. Anny was acting as defendants' no cause of action court found it possible that the grounds for defendants' objections of petition. and no right of action may be removed by Mr ..Pciyton•s· amendment of his As Mr. Payton an such, this court ordered the matter remanded to the trial court to allow concerning opportunity to amend his petition to set forth the necessary factual allegations a cause of action the agency relationship between defendants and Mr. Anny to state against defendants. Payton I, 2011-0940 at 3~ in Thereafter, on February 22, 2012, Mr. Payton filed an amended petition alleging, pertinent part, as follows: VIII. That [ Mr. Williams'] insurer, [ Republic Vanguard], thru [ sic] it[s] adjusting agency, [ Texas General], investigated the accident, determined liability and range of loss. IX ... That after completing it[s] investigation and estimating plaintiffs loss, [ Republic Vanguard] allowed. defendant, [ Mr.] Anny, to negotiate was with plaintiff to arrive at a· settlemenf amount ($ 256,714.86) that agreed to by [ Republic Vanguard] and plaintiff. x .. •. . . . That [Republic Vanguard] wanted a ·receipt and release agreement executed by Plaintiff prior to releasing the settlement check. XI. Defendant, [ Mr.] Anny, had the Settlement of Claims Agreement and Release prepared according to [ Republic Vanguard's] specifications and had the agreement executed by plaintiff. XII. To facilitate the transaction, Defendant, [ Mr.] Anny, wrote plaintiff was a personal check for the amount of the settlement as security which 4 to be held until plaintiff received the insurance check from [ Republic Vanguard] or its adjuster. XIII. Defendant, [ Mr.] Anny, sent the executed Settlement of Claims Agreement to defendants, [ Republic Vanguard] and [ Texas General], who the after reviewing the agreement, prepared a check in the amount of settlement and sent it to defendant, [ Mr.,] Anny . XIV. . That the Settlement of Claims Agreement executed by plaintiff and accepted by defendants, [ Republic Vanguard] and [ Texas General], to provided a full release of all claims agc,:iihst tnese defendants in addition all EPA and Cleans providing said defendants with full indemf)ity· against Water Act violations. · · · · XV. That all acts of defendant,· [ Mr.] Anny, taken. fo.r the benefit of defendants, [ Republic Vanguarq] and [ Texas General], were ratified by after receiving . and . reviewing the executed settlement agreement, they prepared and sehfa check in the full amount of the settlement to [Mr.] Anny. these defendants When XVI. That all acts of defendant, [ Mr.] Anny, taken at all pertinent times d referred to herein were acts as agent for . efendants,. [Republic Vanguard] and [ Texas General] .. XVII. . That all acts of defendant, [ Mr.] Anny, taken for the benefit of defendants, [ Republic Vanguard] · and [ Texas General], were ratified by said defendants therein confirming the agency between the parties. XVJll. That the executed settlement agreement and the signed check in the full amount of the settlement constituted an enforceable settlement agreement between plaintiff and ail defendants. XIX. That instead of paying your plaintiff directly, defendants, [ Republic Vanguard] and [ Texas General] made the settlement check payable to defendant, [ Mr.] Anny, who they assumed would pay plaintiff. In response . to the amended petition, Republ.ic Vanguard and Texas General lacked factual moved for summary judgment, arguing that Mr. .P,ay1;on's amended petition support for the allegation that Mr. Anny was acting as their agent. In support of their submitted the motion for summary judgment, Republic Vanguard and Texas General Texas General. affidavit of Ed Milstead, a claims adjuster and litigation supervisor with Vanguard or Mr. Milstead stated that Mr. Anny was not employed by either Republic Texas General and was never authorized to act on their behalf. 5 He further indicated that agreement with Mr. Anny had never been ,given authorization to negotiate a settlement Mr. Payton on behalf of Republic Vanguard or Texas General. position that To the contrary, Mr. Payton asserted that the evidenct; supported his of Republic the settlement agreement was prepared according to the specifications Vanguard er Vanguard and was agreed to by all parties. . He · furt~ qrguE;d that Republic when they and Texas General knowingly chose to ap;:ept the benefits of the agreement reimbursed Mr. Anny and thereby became obligated und~r the agreement. of Christopher In support of his· position, Mr. Payton . submitted the deposition Bridges, the attorney who prepared the settlement.agreement. Mr. Bridges testified that, in his office as best as he could recall, Mr. Anny, Mr, YJilliamsu and Mr. Payton appeared for him to prepare the settlement. document (" the· memo") he r. During . hi,s deposition, . ~ contended· det~lled 3 requirements in the settlement. Bridges produced a what " they" wanted in terms of Repuqltc V~ ngljarp and Texas General objected to inclusion of the memo and moved to strike it frorn being admitted. In support of their of Mr. motion to strike, Republic Vanguard and Texas General submitted an affidavit had no Mr. Milstead stated that he; neith,er created nor sent the memo and Milstead. knowledge of who may have created· the memo. Mr. Milstead further 'testified that or sending the neither Republic Vanguard nor Texas General had any record of creating memo. or Mr. Milstead concluded by stating that the memo could not have been created not contain any sent by anyone associated with Texas General 1 as the document did company letterhead as required by company policy and procedure, well as the On September.12, 2013, the trial cpurt denied the. motion to strike, .as supervisory nd motion for summary judgment. Republic \fangµqrd ~ Texas General sought issued the review of the trial court's rulings, and on. February 27, 2014, this court following: WRIT GRANTED IN-PART, DENIED IN PART. The trial court's ruling of September 12, 2013, denying Republic Vanguard Insurance from Texas Generalc with Mr. Although the memo is clearly addressed to Mr. Bridges, it appears to come the page, The memo is neither Milstead as a contact, and includes handwritten notations at the bottom of letterhead at the top of the document. dated nor signed, and there is no 3 6 Company and Texa_s General Agency's motion to strike hereby is reversed and judgment is entered granting their motion to strike. A document that is not an affidavit or sworn to in any way, or is not certified or attached to an affidavit, does not satisfy the requirements of La. C.C.P. art. 967A and is not competent summary judgment evidence. In all other respects the writ is denied. Payton v. Republic Vanguard Ins. Co., 2013-1921 ( La. unpublished writ action) ( Payton II). App. 1 Cir. .. 2/27/14) On May 30, 2014, Republic Vanguard and Texas General filed a second motion for summary judgment, again alleging that Mr. Payton had failed to produce any admissible evidence to show that Mr. Anny ever acted as their agent. They noted this court's ruling concerning the memo referred to in Mr. Bridges' deposition and maintained that they were entitled to judgment as a matter of law. In support of their IJ10tion for summary judgment, Republic Vanguard and Texas General introduced the following exhibits: 1) a copy of Mr. Payton's original petition; 2) a copy of this court's judgment in Payton I; 3) a copy of Mr. Payton's amended petition; 4) excerpts from the deposition of Mr. Williams; 5) excerpts from the deposition of Mr. Anny; 6) excerpts from the deposition of Mr. Bridges; 7) a copy of this court's decision ( referenced above) in Payton II; and 8) the affidavit of Mr. Milstead. Mr. Payton filed a memorandum in opposition to the second motion for summary judgment. Mr. Payton noted that no new documents or other evidence had been introduced by Republic Vanguard and Texas General in support of their second motion for summary judgment. Mr. Payton alleged further that the issues raised, which were not new issues, had been fully addressed by the trial court's denial of the first motion for summary judgment and this court's affirmance of same. Thus, Mr. Payton alleged, the second motion for summary judgment was barred by the doctrine of res judicata. 4 lt is well settled that the denial of an initial.motion for summary judgment does not bar a second motion for summary judgment. The denial of a motion for summary judgment is an interlocutory judgment, which the trial court may change at any time up to final judgment. An interlocutory judgment cannot serve as the basis for a plea of res judicata. Furthermore, the jurisprudence specifically allows a trial 4 court to consider a second motion for summary judgment after a first motion for summary judgment on the same issu'e has been denied. Honor v. Tangipahoa Parish School Bd., 2013-0298, p. 4 (La. App. 1 Cir. 11/1/13), 136 So.3d 31, 34, writ denied, 2014-0008 (La. 2/28/14), 134 So.3d 1181. 7 With regard to the J11emo that this court, in Payton II, had determined did not , satisfy the requirements of La. Code Civ. P. art. 967(A), Mr. Payton pointed out that in support of his opposition, he submitted Mr. Bridges' entire deposition with the memo attached thereto. Mr. Payton noted that not only did Mr. Bridges identify the memo, but at that he also stated he used the memo as a guide to draft the settlement agreement Mr. Payton further argued that in addition to sending Mr. Anny a check in issue herein. to the exact amount of the settlement, Republic Vanguard and Texas General sent a letter 256,714.86[.] Our Mr. Williams stating, " We have settled this claim with total payout of $ and file is now closed." Thus, Mr. Payton maintained, these actions by Republic Vanguard Texas General constituted " clear and unequivocal proof that [ they] had accepted the benefit of the settlement agreement" and " at the very least, ratified the acts of ... [Mr. Anny] on their behalf." Mr. Payton alleged there were disputed issues of material fact that could only be resolved at a trial on the merits. In support of his position, Mr. Payton introduced the following exhibits: 1) a copy of this court's decision in Payton II; 2) a for copy of the trial court's September 12, 2013 judgment denying the first motion summary judgment and the motion to strike; 3) the deposition of Mr. Bridges; 4) a copy for of the settlement agreement; 5) a copy of the check Mr. Anny wrote to Mr. Payton 256,714.86; 6) a copy of the check from Texas General to Mr. Anny for $256,714.86; the 7) Republic Vanguard's June 13, 2006 letter to Mr. Williams; 8) Mr. Anny's answer to amended petition; 9) excerpts from the deposition of Mr. Anny; and 10) the deposition of Mr. Williams. On July 7, 2014, the trial court heard arguments on the motion for summary judgment. At the conclusion of the hearing, the trial court ruled in favor of Republic Vanguard and Texas General, granting the motion for summary judgment to that effect. Judgment was signed by the trial court on July 7, 2014. It is from this judgment that Mr. Payton has appealed, assigning the following specifications of error for our review: 1. The Lower Court erred in failing to find that Appellant had submitted sufficient evidence to carry his burden at trial of showing that Appellees, Republic Vanguard Insurance Company and Texas General Agency[,] ratified the settlement agreement and thereby became parties thereto and 8 obligated for the performance thereof. It was legal error for the Lower Court to require an ·agency relationship in order for ratification to occur. of 2. The [ L]ower Court erred in failing to find that Appellees' allegations subrogation as their motive for paying defendant, Randy Anny, the 256,714.86 that was due Appellant pursuant to the settlement agreement was legally impossible under Louisiana Law and under the facts known to Appellees at the time the payment was made. RULE TO SHOW CAUSE After Mr. Payton appealed, this court issued a rule to show cause order indicating of the July 7, 2014 judgment appeared to lack appropriate decretal language disposing the dismissing and/or claims of Vanguard Republic and Texas General. On in November 10, 2014, the trial court signed an amended judgment, which stated, pertinent part: For the written reasons previously submitted by this Court on July 7, 2014, the Motion for Summary Judgment on behalf of the defendants, Republic Vanguard Insurance Company and Texas General Agency, is GRANTED. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that plaintiffs claims in the above captioned matter against defendants, Republic Vanguard Insurance Company and Texas General Agency be and are hereby dismissed with prejudice. a January 12, The appellate record was supplemented with the amended judgment. In 2015 order signed by this court, the appeal was maintained; however, the final to this determination as to whether the appeal was to be maintained was referred appellate panel for disposition, along with the merits of the appeal. The July 7, 2014 judgment, as amended by the November 10, 2014 judgment, e., it names contains the appropriate decretal language to be a valid final judgment, i. the ruling is the party in favor of whom the ruling is ordered, the party against whom See Jenkins v. Recovery Technology ordered, and the relief that is granted. Investors, 2002-1788, pp. 3-4 ( La. App. / 1 Cir. 6/27 03), 858 So.2d 598, 600. the Therefore, we declare the existence of a final, appealable judgment, and maintain appeal. Island See La. Code Civ. P. art. 2088; see also Henkelmann v. Whiskey Preserve, LLC, 2011-0304, p. 3 ( La. App. 1 Cir. 6/1/12), unpublished). We now address the merits of Mr. Payton's appeal. 9 2012 WL 1965853 1 SUMMARY JUDGMENT5 a full scale is a procedural device used to avoid A motion for summary judgment relief prayed of material fact for all or part of the trial when there is no genuine issue 0116, p. 4 (La. of Georgia, Inc. v. Vincent, 2010for by a litigant. All Crane Rental 11/19/ 10), 49 1027, writ denied, 2010-2227 ( La. App. 1 Cir. 9/10/10), 47 So.3d 1024, So.3d 387. should only be granted if the pleadings, A motion for summary judgment affidavits, if and admissions, together with the depositions, answers to interrogatories, 6 that there is no motion for summary judgment, show any, admitted for purposes of the judgment that the movant is entitled to summary genuine issue as to material fact, and P. art. 966( 8)( 2). as a matter of law. La. Code Civ. the for summary judgment remains with The burden of proof on a motion on the matter not bear the burden of proof at trial movant. However, if the movant will s burden on for summary judgment, the movant' that is before the court on the motion adverse party's negate all essential elements of the the motion does not require him to is an absence of to point out to the court that there claim, action, or defense, but rather action, essential to the adverse party's claim, factual support for one or more elements sufficient to party fails to produce factual support or defense. Thereafter, if the adverse trial, there is his evidentiary burden of proof at establish that he will be able to satisfy no genuine issue of material fact. v. Pearce, La. Code Civ. P. art. 966(C)(2); Janney it is governed by the version of was signed on April 8, 2014; thus, The summary judgment in this case No. 391, § 1, effective August 1, after its amendment by 2013 La. Acts, La. Code Civ. P. art. 966 in effect 1 Cir. 10/30/13), 133 So.3d Bank, 2012-2079, p. 6 n.3 ( La. App. 2013. See Ciolino v. First Guaranty 966 are not implicated in this by a later amendment to Article 686, 690 n.3. Changes implemented Smith v. Northshore Regional 187, § 1, effective August 1, 2014. appeal. See 2014 La. Acts, No. n.3. So.3d _, _ n.3 ( La. App. 1 Cir. 1/26/15), _ Medical Center, Inc., 2014-0628, p. _ 5 to 2013, No. 391, § 1, 966 was recently amended by Acts Louisiana Code of Civil Procedure article for summary judgment. Under and objections to evidence for motions provide for submission of evidence motion for summary judgment evidence cited in and attached to the the amended version of the article, of the motion for summary party is deemed admitted for purposes or memorandum filed by an adverse with Article 966(F)( 3). Only to an objection made in accordance judgment unless excluded in response may be considered by the court in of the motion for summary judgment evidence admitted for purposes a summary judgment may be Civ. P. art. 966(F)(2). Moreover, its ruling on, the motion. La. Code consideration by the court at issues set forth in the motion under rendered or affirmed only as to those 6 that time. La. Code Civ. P. art. 966(F)( 1). 10 So.3d 285, 288-289, writ denied, 20102009-2103, p. 5 ( La. App. 1 Cir. 5/7/10), 40 1356 ( La. 9/24/10), 45 So.3d 1078. has been properly supported by Thus, once the motion for summary judgment party to produce evidence of a material the moving party, the failure of the non-moving motion. factual dispute mandates the granting of the La. Code Civ. P. art. 967(6); 1856, p. 2 (La. App. 1 Cir. 8/21/08), Pugh v. St. Tammany Parish School Bd., 20072008-2316 ( La. 11/21/08), 996 So.2d 994 So.2d 95, 97 ( on rehearing), writ denied, 1113. is made and supported as Moreover, when a motion for summary judgment on the mere allegations or denials of his provided above, an adverse party may not rest provided above, must set forth pleading, but his response, by affidavits or as otherwise issue for trial. specific facts showing that there remains a genuine If he does not so be rendered against him. respond, summary judgment, if appropriate, shall La. Code Civ. P. art. 967(6). is proper, appellate courts review In determining whether summary judgment govern the trial court's determination of evidence de nova under the same criteria that whether summary judgment is appropriate. Sanders v. Ashland Oil Inc., 96-1751, 2d 1031, 1035, writ denied, 97-1911 ( La. p. 7 ( La. App. 1 Cir. 6/20/97), 696 So; 10/31/97), 703 So.2d 29. or preclude Material facts are those that potentially ensure the outcome of a legal dispute. recovery, affect the litigant's success, or determine 3 ( La. App. 1 Cir. 5/2/08), 991 So.2d Populis v. Home Depot, Inc., 2007-2449, p. 992 So.2d 943. 23, 25, writ denied, 2008-1155 ( La. 9/19/08), is such that a reasonable fact On appeal, Mr. Payton argues that the evidence his evidentiary burden of proof at trial finder could conclude he would be able to satisfy regarding the issue of agency and ratification. Mr. Payton maintains that the along with the actions of Republic documentary evidence and deposition testimony, agreement was signed by Mr. Payton, Vanguard and Texas General after the settlement and that Republic Vanguard and clearly show that there was a valid settlement agreement their behalf. Texas General ratified the acts of Mr. Anny on Payton's arguments on appeal. 11 We find no merit to Mr. Although the initial burden of proof was on Republic Vanguard and Texas General, they will not bear the burden of proof at trial on the issue of agency and/or ratification. As such, they did not need to negate these elements of Mr. Payton's claim. In order to shift the burden, to Mr. Payton, Republic Vanguard and Texas General only had to point out that there was an absence of factual support for these elements. The burden then shifted to Mr. Payton, as the non-moving party, to produce factual support sufficient to establish that he would be able to satisfy his burden of proof at trial. La. Code Civ. P. art. 966(C)(2); Janney, 2009-2103 at 5, 40 So.3d at 288-289. A mandate is a contract by which a person, the principal, confers authority on another person, the mandatary, to transact one or more affairs for the principal." La. Civ. Code art. 2989. " The contract of mandate is not required to be in any particular form. Nevertheless, when the law prescribes a certain form for an act, a mandate authorizing the act must be in that form." La. Civ. Code art. 2993.7 The question of a mandate/agency is a factual determination that should not be reversed on appeal absent a finding of manifest error. See Terito v. Wall-Vaughn Motors, Inc., 2007- 0627, p. 3 n.2 ( La. App. 1 Cir. 12/21/07), 978 So.2d 403, 404 n.2. Ratification is a declaration whereby a person gives his consent to an obligation incurred on his behalf by another without authority. 8 La. Civ. Code art. 1843. Tacit ratification results when a person, with knowledge of an obligation incurred on his behalf by another, accepts the benefit of that obligation. Snyder v. Belmont Homes, Inc., 2004-0445, p. 10 ( La. App. 1 Cir. 2/16/05), 899 So.2d 57, 64, writ denied, 2005- pursuant to La. As noted in Comment ( c) to Article 2993, the law requires a written act for a compromise to enter into a Civ. Code art. 3071. Thus, under Article 2993, a mandate authorizing the mandatory 7 compromise agreement must be in writing. 8 Article 1843 provides as follows: Ratification is a declaration whereby a person gives his consent to an obligation incurred on his behalf by another without authority. An express act of ratification must evidence the intention to be bound by the ratified obligation. Tacit ratification results when a person, with knowledge of an obligation incurred on his behalf by another, accepts the benefit of that obligation. 12 is upon the party 1075 ( La. 6/17/05), 904 So.2d 699. The burden of proving ratification must indicate a asserting it, and to find ratification of an unauthorized act, the facts will be inferred when the clear and absolute intent to ratify the act, and no intent alleged ratification can be explained otherwise. Florida v. Stokes, 2005-2004, p. 7 La. App. 1 Cir. 9/20/06), 944 So.2d 598, 603. written or verbal Mr. Anny testified in his deposition that he was never given authority to settle claims from Republic Vanguard or Texas General. According to Mr. 714.86 check was to Williams' deposition testimony, Mr. Anny told Mr. Payton the $ 256, pay for his dredge. hold Mr. Williams further testified that Mr. Anny told Mr. Payton to " Mr. Williams added further the check for a couple of days and then it should go through." In fact, Mr. Williams that Mr. Anny never purchased a new dredge to give to Mr. Payton. Anny rebuilt together. testified at length in his deposition about a dredge that he and Mr. man named Randy However, according to Mr. Williams, that dredge was sold to another Lafarge. Mr. Anny Mr. Bridges testified that at all times during the settlement transaction, was his client. to He emphatically stated that he had never been given authority With regard to negotiate a settlement on behalf of Republic Vanguard or Texas General. not recall receiving it. the memo, Mr. Bridges identified it as being in his file, but could with the drafting of Mr. Bridges did say that he " probably" used the memo in connection of the memo otherwise. the settlement agreement, although he had no particular memory it appeared to have been Mr. Bridges did not know who wrote the memo but testified that written by Mr. Milstead. for summary After hearing argument from the parties at the hearing on the motion judgment, the trial court offered the following reasons for judgment: After considering the law on the issues, reviewing the written this pleadings of the parties, and listening to the parties' oral arguments, the Court finds that no genuine issues of material fact remain concerning Anny. relationship between the defendants and their attorney with Randy the This Court agrees with the defendants. Randy Anny, when executing of the settlement with the plaintiff, did not act as an agent on behalf to the Furthermore, the defendants' actions subsequent defendants. did execution of the settlement agreement between Anny and the plaintiff not The defendants did not amount to ratification of the agreement. 13 the plaintiff and become obligated to the terms of the agreement between Anny through the act of ratification. thoroughly reviewed Applying the above legal precepts to this case, and having s conclusion that summary the evidence in the record,, we agree with the trial court' judgment was warranted. Republic Vanguard and Texas General having established upon Mr. Payton to produce their burden of proof on the motion, it was incumbent able to satisfy his evidentiary factual support sufficient to establish that he would be summary judgment in burden of proof at trial. Mr. Payton failed to do so. Accordingly, and all claims by Mr. favor of Republic Vanguard and Texas General was appropriate, below. Payton against them were properly dismissed by the trial court DECREE trial court's judgment For the above and foregoing reasons, we affirm the Insurance Company and granting summary judgment in favor of Republic Vanguard Preston Payton's claims against Texas General Agency and dismissing, with prejudice, Preston Payton. them. All costs associated with this appeal are assessed against AFFIRMED. 14

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