 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Hebert v. ANCO Insulation7/31/2002
nal jurisdiction and failure to affirmatively plead the affirmative defense of extinguishment of debt due to the alleged secondary or derivative nature of Dow's liability. However, I respectfully dissent from the majority's decision to vacate the trial court's judgment in this matter and to remand for a determination of whether plaintiffs reserved their rights against Dow when they settled with other solidary obligors.
Although the record contains ample evidence for this court to conduct its review, the majority bypasses resolution of the merits of this appeal, in this voluminous case tried to finality before a jury, on the basis of a perceived defect in the record. In my view, this type of judicial overreaching frustrates, rather than furthers, the interests of justice and undermines the confidence of the public and the profession in the sanctity of a jury verdict.
Failure to articulate a ruling on the record is not the equivalent of failure to rule. Indeed, many discussions and rulings occur off the record in hotly-contested and protracted litigation, as most certainly occurred in the instant case. For a litigant to make a demand for relief at trial, obtain an in camera inspection in connection with the demand and then stand mute for the remainder of the proceedings when the trial court has obviously denied the demand by failing to grant the requested relief after the in camera inspection does not constitute, in my view, clear error by a trial court as would justify later setting aside a verdict on the merits.
It is well established that silence in a court's judgment or ruling with respect to any urged claim or demand constitutes rejection of the claim or demand, and the trial court is not required to articulate its rejection on the record for its rejection to have legal effect.
The record and exhibits in this matter are in excess 3,648 pages. The verdict rendered in this case was the culmination of lengthy and protracted proceedings over a number of years, involving multiple parties, issues and evidentiary rulings by the trial court in the course of a two-week trial. All parties were amply represented by experienced counsel and fully participated in the trial. While the trial court did not provide specific reasons for denying Dow's claim that no reservation of rights had occurred, notably absent from the record of this two-week trial is any objection by Dow raising or addressing the trial court's alleged failure to rule or to specifically articulate its ruling.
With regard to this issue of the alleged lack of a reservation of rights, Dow contends that the release of any solidary obligor, such as the manufacturing defendants, without a reservation of rights discharges the debt as to the remaining solidary obligors. Although the settlement documents, whereby plaintiffs settled with the manufacturing defendants, are not a part of this record, Dow now contends that plaintiffs have failed to prove that they reserved their rights to proceed against Dow, as a solidary obligor.
Former LSA-C.C. art. 2203, upon which Dow relies, 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 can not claim the debt without making a deduction of the part of him to whom he has made the remission.
Plaintiffs, on the other hand, argue that former LSA-C.C. art. 2203 does not apply herein, because the settlements at issue were confected after new article 1803 was added, which deleted the reservation of rights requirement. As part of the general revision of the
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Louisiana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|