United States Court of Appeals,

Fifth Circuit.

No. 95-30621.

Sidney R. WILHITE, Plaintiff-Appellant,

v.

H.I. SCHENDLE; Federal Deposit Insurance Corporation, Defendants-Appellees,

and

James W. Beaver; James M. Rasbery, Defendants.

Aug. 28, 1996.

Appeal from the United States District Court for the Western District of Louisiana.

Before WISDOM, EMILIO M. GARZA and PARKER, Circuit Judges.

WISDOM, Circuit Judge:

The plaintiff-appellant, Sidney Wilhite, appeals the dismissal of his suit against

defendant-appellee, H.I. Schendle, for contribution to a Settlement Agreement made with the

Resolution Trust Corporati on ("RTC"), the statutory predecessor to defendant-appellee, the Federal

Deposit Insurance Corporation ("FDIC"). Wilhite also appeals the dismissal of his cause of action

against the FDIC for the return of a porti on of his settlement payment. For the reasons that follow,

we AFFIRM the dismissal of the case against both defendants.

I. BACKGROUND

Sidney Wilhit e and H.I. Schendle are both former directors of the Deposit Trust Savings Bank

of Monroe, Louisiana ("the Bank"). In 1990, the United States Office of Thrift Supervision closed

the Bank and appointed the RTC as receiver. The RTC investigated the cause of the Bank's failure,

and eventually made a demand for compensation from the Bank's former officers and directors.

Following a period of negotiations, the RTC reached a settlement agreement with seven of

the former directors and off icers o f t he Bank, including Schendle and Wilhite ("the Settlement

Agreement"). The Settlement Agreement pro vided for a payment by the officers and directors of

$750,000 to the RTC in exchange for their discharge from any claims arising from the Bank's trading1 Perlman v. Pioneer Ltd. Partnership, 918 F.2d 1244 (5th Cir.1990).

practices. Throughout the negotiation process, Schendle denied liability, and stated that he would

refuse to pay any settlement amount. Nonetheless, Schendle, Wilhite, and the other five directors and

officers signed the Settlement Agreement with the RTC.

Wilhit e paid the entire $750,000 to the RTC. He then made arrangements with three of the

six remaining directors to receive compensation for their portions of the settlement amount. After

failing to reach agreements with the last three directors, Wilhite filed this suit on June 3, 1993. He

later dismissed one of those defendants to maintain federal diversit y jurisdiction, and obtained a

default judgment against a second defendant, leaving Schendle as the only remaining defendant. After

an unsuccessful attempt to o bt ain summary judgment against Schendle, Wilhite amended his

complaint and added the RTC as defendant to the suit, seeking the return of three -sevenths of the

Settlement proceeds.

The district cou rt heard testimony on the case, and issued a memorandum ruling denying

recovery to Wilhite and dismissing his suit with prejudice. Wilhite filed a timely notice of appeal.

II. DISCUSSION

Wilhit e contends that Schendle should be required to contribute under any of several theories

of Louisiana Law, including: applying of the laws of solidary liability to the Settlement Agreement;

subrogation; "unjust enrichment;" and "payment of a thing not due." Alternatively, Wilhite maintains

that the FDIC should be required to reimburse him under the theory of "payment of a thing not due."

We address each theory of law in turn, reviewing the district court's conclusions of law de novo, and

its factual findings for clear error. 1

A. The Nature of the Directors' and Officers' Obligation

Wilhit e's first theory of recovery against Schen dle is t hat the Settlement Agreement

alternatively created either a "solidary" obligation or a "joint and indivisible" obligation among the

Bank's former director's and officer s. Under Lo uisiana law, either of these types of obligations is

enforced under the rules governing solidary liability, and would give Wilhite a right of contribution2 La.Civ.Code Ann. arts. 1789, 1790.

3 La.Civ.Code Ann. art. 1796; Moreland v. Green, 501 So.2d 975, 978 (La.App. 2d Cir.), writ

denied, 504 So.2d 880 (La.1987).

4 Id.

5 Johnson v. Jones-Journet, 320 So.2d 533, 536 (La.1975).

6 USX Corp. v. Tanenbaum, 868 F.2d 1455 (5th Cir.1989).

7 Johnson, 320 So.2d at 536. against Schendle. 2

In its ruling, the district court found that the Settlement Agreement created neither of these

types of obligations, but instead created a "joint and divisible" obligation with no right of contribution.

We agree.

In order to have a solidary obligation under Louisiana law, the agreement must demonstrate

an express, written intent for the parties to have such an obligation. 3 Although the words "in solido"

or "solidary" are not necessarily required, there may be no doubt as to the parties' intention on this

matter. 4 Applying this strict standard, the Louisiana Supreme Court has determined that while the

phrase "we promise to pay" is insufficient to create a solidary obligation, a reference to "our promise

to pay" is sufficient to create one. 5

Wilhit e contends that the language of the Settlement Agreement in this case is more akin to

the latter phrase, because the Agreement refers to the Bank's directors and officers as a group, and

also refers to only one "payment" and one "release." We disagree. The portions of the Settlement

Agreement cited by Wilhit e do not amount to an express stipulation of solidary liabilit y. In order to

create solidary liab ilit y, Louisiana law requires more than a solidary "tenor" to an agreement. 6

Furthermore, paragraph two of the Settlement Agreement specifically provides that:

"The former officers and directors agree to pay, and hereby pay, and the RTC agrees to

receive and hereby acknowledges receipt and sufficiency of the sum of $750,000.00 cash (the

"Settlement Proceeds").

If one substitutes the word "we" for "the former officers and directors," it is clear that this language

is analogous to the phrase "we promise to pay," and creates a joint obligation among the parties. 78 La.Civ.Code Ann. art. 1815.

9 Id.

10 Stockstill v. Byrd, 132 La. 404, 61 So. 446 (La.1913). Under Lo uisiana law, such a joint obligation may be either "divisible," or "indivisible,"

depending on the nature of the object of performance and the intention of the parties. The obligation

is "divisible" if the object of performance is susceptible of division. 8 It is "indivisible" if the object of

performance is i ncapable of division or if the parties intend to make an otherwise divisible

performance indivisible. 9 In this case, the directors' and officers' obligation under the Settlement

Agreement was a financial payment to one entity. We agree with the district court that by nature,

such a monetary payment is susceptible of division. Wilhite maintains, however, that the Settlement

Agreement demonstrates an intent to make the financial obligation "indivisible" among the directors

and officers.

We look to the Settlement Agreement as a whole to determine the intent of the parties on

this issue. 1 0 As previously discussed, paragraph two demonstrates an intent to avoid a solidary

obligati o n. Wilhite argues, however, that other provisions in the Settlement Agreement show the

intent to make the joint obligation "indivisible." He first relies on the language of paragraphs three

and four, which read as follows:

"3. In consideration of the payment of the Settlement Proceeds, the RTC does hereby release

and discharge the former officers and directors ..."

"4. In consideration of the release granted herein above by the RTC, the former officers and

directors hereby release and discharge the RTC in all its various capacities...."

According t o Wilhit e, t his language makes it clear that only one performance (the "Settlement

Proceeds") is expe ct ed by the RTC, and in return only one performance (a general "release" of

liability) is given by the RTC. Wilhite maintains that the obligation must therefore be "indivisible".

In effect, he argues that one performance by law cannot be made up of divisible parts. This argument

is weak and somewhat circular. Altho ugh t he "Settlement Proceeds" is a singular mass, the

agreement to pay in paragraph two provides that sum will be paid by the plur al "officers and

directors." Thus, language regarding a "singular" performance still offers no insight into whether theparties responsible for that performance intended it to be divisible. Further, the nature of the return

obligation on behalf of the RTC is on its face capable of division. The singular "release" of liabilit y

give n t o t he seven directors is clearly capable of division into seven individual releases of liability.

Thus, these provisions do not support Wilhite's argument.

Wilhit e also argues that paragraph six of the Settlement Agreement evidences the necessary

intent. That provision reads as follows:

"6. Nothing in this Agreement shall be interpreted as a bar to any rights of the former officers

or directors to indemnification or contribution from any other former officer or director as a consequence of their respective payments to the RTC in connection with this Agreement,

nor shall it be construed as an expansion of any rights which may exist in the absence of this

Agreement."

Wilhit e insists that this clause leads to the conclusion that the parties intended to make the obligation

"indivisible." He contends that this clause creates the right to seek indemnification or contribution

from the other former directors and officers signing the Settlement Agreement. We disagree. The

language, "nothing in this Agreement shall be interpreted as a bar to any rights

... to indemnification

or contribution as a consequence of their respective payments to the RTC ..." does not indicate that

it is creating new rights within the Agreement. Instead, the passive language leads us to conclude

that the paragraph merely preserves rights that may exist outside of the Settlement Agreement. This

concl usio n is bolstered by the additional language, "nor shall [the Agreement] be construed as an

expansion of any rights which may exist in the absence of this Agreement." That language specifically

indicates that paragraph six does not create new rights of contribution.

In sum, there is no evide nce t hat t he directors and officers intended their obligation to the

RTC to be indivisible. The district court correctly concluded that the Settlement Agreement created

a "joint and divisible" obligation for the Bank's directors and officers, and that there is therefore no

right of contribution among them.

B. Subrogation Rights between Wilhite and Schendle

As an alternative theory of recovery, Wilhit e argues that if the o bligat ion is "joint and

divisible," Wilhit e should still be able to recover through the theory of subrogation, or the substitution

of one person for the rights of another. Under Lo uisiana law, subrogation may occur either by11 La.Civ.Code Ann. art. 1825.

12 La.Civ.Code Ann. art. 1827.

13 La.Civ.Code Ann. art. 1829.

14 La.Civ.Code Ann. art. 1855. "conventional" or "legal" means. 11 "Conventional" subrogation occurs when an obligee receives

performance from a third person and in express terms subrogates that person to the ri ghts of the

obligee, even without the obligor's consent. 12 "Legal" subrogation takes place by operati on of law

in favor of an obligor who pays a debt he owes with others and who has recourse against those others

as a result of the payment. 13

1. Conventional Subrogation.

The district court held that because Wilhit e was also an obligor to the RTC, and had already

extinguished the debt to the RTC, he could not seek "conventional" subrogation against Schendle.

The court based its conclusi o n o n Louisiana Civil Code article 1854, which provides that

"performance by the obligor extinguishes the obligation." This interpretation is correct. Wilhite and

Schendle were liable for the same "obligation," although in divisible portions. As such, article 1854

applies. Because Wilhite was an obligor, and paid the obligation, he cannot now be a third party to

that same obligation, and seek subrogation from another obligor.

In addition, under Louisiana law, third party subrogation can not arise unless "so provided

by law or by agreement". 14 Wilhit e argues that paragraph six provides the necessary authorization

to pursue conventional subrogation. As discussed above, however, paragraph six is merely meant

to preserve pre-existing rights, not to create new ones. Thus, Wilhite has no right to conventional

subrogation against Schendle.

2. Legal Subrogation.

The five instances in which "legal" subrogation may occur are specific ally list ed in

La.Civ.Code art. 1829. The only instance that is applicable to this case is the third one:

"[Subrog at io n t akes place by operation of law] in favor of an obligor who pays a debt he

owes with others or for others and who has recourse against the others as a result of th e payment."15 Perkins v. Scaffolding Rental & Erection, Inc., 568 So.2d 549 (La.1990).

16 205 So.2d 422, 432 (La.1967).

17 Id. The district court found that this section did not app ly because the Settlement Agreement did not

include a right to contribution among the directors and officers, and therefore the required "recourse

against the others" was absent. For the reasons previously discussed, we agree with the district

court's interpretation of the Settlement Agreement.

Furthermore, we find that regardless of the content of the Settlement Agreemen t, legal

subrogation would not apply to this case. Under Louisiana law, where there is no solidary liability,

any right to contribution must arise out of the rights of the common creditor. 15 In this case, the RTC

did not subrogate its rights against the non-paying signatories to the only paying signatory, Wilhit e.

Therefore, Wilhit e could have no right of contribution or subrogation against his co-debtors. To find

otherwise would allow one party to transform a joint and divisible obligation into a solidary obligation

by the mere application of the legal subrogation statut e. This int erpretation would make the

distinction between divisible and indivisible meaningless. Therefore, we find t hat Wilhite has no

subrogation rights against Schendle.

C. "Unjust Enrichment"

Wilhit e's t hird theory of recovery against Schendle is that of "unjust enrichment." As

described by the Louisiana Supreme Court in Minyard v. Curtis Products, Inc., 16 an individual can

recover from another under this theory if he proves: 1) the enrichment of the ot her part y ; 2) an

impoverishment; 3) a connection between the enrichment and the impoverishment; 4) an absence

of cause for the enrichment and impoverishment; and 5) the lack of any other remedy at law. 17

In this case, the district court made a finding of fact, based on Wilhit e's trial testimony, that

Wilhit e would have paid the full $750,000.00 to the RTC even if Schendl e was not a party to the

compromise. This finding of fact is not clearly erroneous, particularly since it is based on Wilhite's

personal trial testimony and Wilhit e has offered no evidence tending to show that his statements were

misinterpreted.18 Premium Finance Specialists, Inc. v. International Surplus Lines Ins. Co., 938 F.2d 50 (5th

Cir.1991); A.V. Smith Const. Co. v. Maryland Casualty Co., 422 So.2d 697 (La.App. 3d

Cir.1982). Based on its finding of fact, the district court concluded that the theory of "unjust enrichment"

did not apply to this case because Wilhit e had not suffered an "impoverishment," and because there

was no connection between Schendle's "enrichment" and Wilhite's "impoverishment". We find no

error in this analysis.

D. "Payment of a Thing Not Due"

Finally, Wilhit e contends that both Schendle and the FDIC should be held liable under the

theory of "payment of a thing not due." This cause of action is based on Louisiana Civil Code article

2310, which provides:

"He who, through mistake has paid the debt of another to whom he believed himself indebted,

has a claim to restitution from the creditor.

"This right ceases, if, in consequence of t he pay ment, the creditor has destroy ed or parted

with his title; but t he reco urse still remains open to the person paying as against the true

debtor."

This cause of action is inapplicable to Wilhit e's claim against Schendle. The di stri ct court made a

finding of fact that Wilhit e did not "believe himself to be indebted" to the RTC for Schendle's share,

and therefore held that article 2310 is inapplicable to Wilhite's claim against Schendle.

This factual finding is not clearly erroneous. Wilhite has consistently testified that, at the time

he entered into the Sett lement Agreement, he believed he had a right to recover from the other

signatories. This testimony is directly contrary to the Article 2310 requirement that Wilhite "believe

himself indebted" for Schendle's share. As such, the district court correctly dismissed Wilhite's claim

against Schendle under this provision.

In addition, Wilhit e does not have a claim against the FDIC. Louisiana courts have

consistently interpreted the language of Article 2310 to prohibit the party making a mistaken payment

from seeking restitution from the creditor-recipient if the creditor has lost the right to proceed against

the true debtor. 18 This "destroyed title" can occur if the credito r has already completed its19 Premium Finance, 938 F.2d 50 (where the premiums for an insurance policy were mistakenly

paid twice, but insurer had completed its "performance" of keeping insurance policy in effect and

paying claims on it, the insurer sufficiently "parted with its title" to remove the right to

restitution).

20 A.V. Smith, 422 So.2d 697 (contractor who mistakenly reimbursed school board for damage

done to school building by a subcontractor may have lost right to seek reimbursement from school

board by allowing claim against subcontractor to prescribe).

21 La.Civ.Code Ann. art. 3078; Campbell v. Roman Catholic Church, 490 So.2d 798 (La.App.

3d Cir.), w rit denied, 494 So.2d 1175 (La.1986).

22 630 So.2d 741, 755 (La.1994).

23 Id. performance under the contract as a result of the actions of the mistaken party, 19 or if the mistaken

party has let his own claim against the true credi tor lapse. 2 0 In this case, because of Wilhite's

payment, the RTC released Mr. Schendle from any liabilit y arising out of his management of the bank.

Because of this release, the FDIC no longer "has title" to the alleged overpayment made by Wilhit e.

Therefore, Wilhite cannot seek reimbursement under Article 2310.

We note that Wilhit

e's claim against the FDIC also fails because his attack on the Settlement

Agreement is based on an error of law. Under the Louisiana Civil Code Article 3078, a transaction

or com pro mise "cannot be attacked on account of any error of law." 2 1 The district court made a

specific finding of fact that, at the time Wilhit e entered into the Settlement Agreement, he erroneously

believed he had a right to recover from the other signatories. We find no error in this factual finding,

and agree that Wilhit e's error consti tutes an "error of l aw" such that he cannot now attack the

transaction.

Wilhite attempts to distinguish his particular mistake by arguing that his error was made in

the course of c omplying with the agreement, rather than an error made in the creation of the

agreement itself. As support for his theory, he cites the Louisiana Supreme Court's decision in B rown

v. Drillers, Inc., 22 which stated that Article 3078 was intended to apply to situations in which a party

is s eeking r

escission of a compromise, and not to situations in which the construction of the

compromise is being challenged. 23

In Brown, a deceased worker's widow brought a wrongful death action which the defendants24 Id.

25 Id.

26 Id.

27 Id.

28 See Aetna Casualty and Surety Co. v. Landry, 578 So.2d 537 (La.App. 3d Cir.1991) (insurer

made error of law in deciding that mother of decedent had paramount rights over the decedent's

illegitimate child and could not set aside compromise made with mother); Campbell, 490 So.2d sought to set aside based on an earlier release of liabilit y signed by the widow and the deceased before

the worker died. 24 The court found that the parties had not clearly contemplated that the release

would cover rights accruing after the future death of the worker, and that therefore the widow could

not have intended to release that claim as well. 25 Thus, B rown was not seeking to rescind the earlier

compromise, but challenged the intended scope of that compromise. 26 In this situation, the court held

that Article 3078 did not apply. 27

Wilhit e argues, that like the widow in Brown, he does not wish to set aside the Settlement

Agreement, but merely wishes to have it enforced "according to its terms." The two cases are not

particularly analogous, however. The distinction made by the Supreme Court is that Mrs. Brown's

m istake was not an "error in law," in that she and her husband did not misunderstand what rights

Louisiana law gave her at the time of her husband's injury. The error was one of "construction," in

that she did not understand that the scope of the release was also intended to apply to rights she might

accrue in the future, after the intervening event of h er husband's death. In contrast, the present

agreement is a true "error of law," in that Mr. Wilhit e did no t misunderstand the scope of the

Settlement Agreement. Wilhite understood that seven directors, including himself, would be released

from liability to the RTC for acts arising out of their management of the Bank, if the RTC received

a total of $750,000 from the seven men. What Wilhit e misunderst o od was the nature of his legal

rights under Agreement. Thus, Brown does not apply to this case.

As further support for his argument, Wilhit e notes that all the cases applying Article 3078

address situations in which the settling party agreed to the settlement based on a mistaken belief that

that party was liable for the claim being compromised. 28 Of co urse, in this case, Wilhite does not800 (a party unaware of forced heirship rights in Louisiana who settles a claim agreeing not to

contest her mother's will cannot attack the compromise).

29 Sellers v. Corne, Sellers and Associates, Inc., 649 So.2d 1181 (La.App. 3d Cir.1995). challenge his actual liabilit y to the RTC. Instead, Wilhite seeks recovery because he agreed to the

Settlement Agreement on the mistaken belief that the other directors were liab le for the clai m

compromised. The distinction between this situation and that of the other cases applying Article 3078

is of no consequence. The language of the code article does not distinguish between specific types

of "error in law," and nothing in the case precedent indicates that there should be such a distinction.

Finally, we note that even if Wilhit e's mistake was not an "error of law," but one of fact, the

"factual" error was unilateral, and caused by the carelessness of Wilhit e's own attorney s and advisors.

Under Louisiana law, a compromise cannot be attacked or set aside based upon a unilateral error of

fact resulting from the party's own carelessness. 29 Therefore, we find that Wilhite cannot seek

recovery from the FDIC due to his misunderstanding of the Settlement Agreement with the RTC.

We AFFIRM the dismissal of Wilhite's suit against Schendle and the FDIC.