Dionisio v. Dacanay and Reynaldo C. Dacanay, by His Father and Next Friend v. Saturnina Mendoza, Victor P. Mendoza, and Doe Insurance Co. No. 1

573 F.2d 1075 Dionisio V. DACANAY and Reynaldo C. Dacanay, by his father and next friend, Appellants, v. Saturnina MENDOZA, Victor P. Mendoza, and Doe Insurance Co. No. 1, Appellees. No. 76-3136. United States Court of Appeals, Ninth Circuit. Feb. 21, 1978. Rehearing and Rehearing En Banc Denied April 26, 1978. David M. Shapiro, Jr., Agana, Guam, for appellants. Crain & Shoecraft, Klemn & Dear, Agana, Guam, for appellees. Appeal from the District Court of Guam. Before CHAMBERS, ELY and CHOY, Circuit Judges. ELY, Circuit Judge: 1 Reynaldo Dacanay, a minor, appeals from an order of the District Court approving a settlement agreement made on his behalf by his father, as his next friend, 1 in respect to claims against the defendants arising from a collision between the minor's bicycle and an automobile driven by Saturnina Mendoza. The gravamen of the appeal is that the settlement agreement was repudiated by the next friend prior to its submission by the defendants for court approval and that the court incorrectly considered the minor to be bound by the agreement unless and until the court exercised its power to undo it. Within the boundary hereinafter defined, we agree that…

Reynaldo Dacanay, a minor, appeals from an order of the District Court approving a settlement agreement made on his behalf by his father, as his next friend, 1 in respect to claims against the defendants arising from a collision between the minor’s bicycle and an automobile driven by Saturnina Mendoza. The gravamen of the appeal is that the settlement agreement was repudiated by the next friend prior to its submission by the defendants for court approval and that the court incorrectly con *1077 sidered the minor to be bound by the agreement unless and until the court exercised its power to undo it. Within the boundary hereinafter defined, we agree that the next friend was entitled to repudiate the tentative compromise prior to court approval thereof. Accordingly, we reverse and remand.

The accident occurred in early January, 1973. In late December of the same year, the minor initiated suit in the District Court of Guam by his father, Mr. Dacanay, as next friend. Mr. Dacanay secured counsel to prosecute the litigation. Initial investigations suggested that the negligence of Mrs. Mendoza was doubtful and that the minor’s injuries were not grave and could be surgically corrected.…

dissenting:

I respectfully dissent.

Nothing in the law of Guam or California requires us to allow the guardian ad litem of a minor to repudiate a settlement agreement prior to court approval under the Guam statute. I would not let him do so. The majority’s holding affords the minor no greater protection. Should the guardian ad *1081 litem discover that the settlement offer was improvidently accepted, he should have sufficient evidence to convince the reviewing court that the settlement was not in the minor’s best interests. And the majority’s holding may discourage litigants from settling claims involving minors since the guardian ad litem is now free to change his mind until the moment the court approves it. I would hold that once the guardian ad litem has agreed to a settlement it must be reviewed by the court to determine whether it is in the minor’s best interests or whether the guardian should be allowed to repudiate it.

ORDER ON PETITION FOR REHEARING

For the first time, in their Petition for Rehearing, the appellees urge the applicability of section 1544 of the Guam Civil Code. 1 That section permits an injured person who has settled his claim within fifteen days after…