Abbott v. Abbott

456 So. 2d 1028, 1984 La. App. LEXIS 9443
CourtLouisiana Court of Appeal
DecidedAugust 28, 1984
DocketNo. 83-CA-857
StatusPublished
Cited by1 cases

This text of 456 So. 2d 1028 (Abbott v. Abbott) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abbott v. Abbott, 456 So. 2d 1028, 1984 La. App. LEXIS 9443 (La. Ct. App. 1984).

Opinion

CHEHARDY, Judge.

Plaintiff, Geraldine Scolaro Abbott, filed this suit for an accounting of community property revenues, and traversing the corporate management of her former husband, John W. Abbott. Following trial, judgment was rendered in favor of Mr. Abbott approving the accounting and disbursement, ordering the parties to maintain the sum of $8,000 by equal contributions in the bank account for the operation of jointly held properties, and providing that any sums in such account in excess of $15,000 were to be equally divided between the parties.

Plaintiff has appealed.

The record reflects the parties were judicially separated on November 2, 1981 and at that time they entered into a settlement of community and compromise agreement. Under the terms of the agreement plaintiff and defendant were recognized as co-owners in indivisión of various items of very substantial community property consisting of notes, a fourplex, two residences, a tour company (Abbott Tours, Inc.), for which defendant paid plaintiff $220,000 for her one-half interest, and a commercial building known as the Abbott Building.

After much litigation, most of their problems were resolved, with the exception of property involved here, the Abbott Building, which continued to be co-owned from November 2, 1981 through November 30, 1982 (the accounting period).

During the accounting period defendant managed the property. Initially joint checking accounts were established into which Mr. Abbott deposited all rents and revenues, and wrote disbursement checks which required the signature of both parties.

This arrangement was unsatisfactory, apparently because plaintiff refused to sign checks for various expenses defendant considered necessary. He then filed a rule to show cause why plaintiff should not be required to sign the checks. (Plaintiff excepted that such action was not proper under summary proceedings. Defendant dismissed the rule and then opened a bank account for the benefit of plaintiff and defendant on which .only he signed the checks. He sent copies of deposit slips, bank statements, etc., to plaintiff.)

Plaintiff was dissatisfied with this arrangement and wanted the management turned over to a third party, a local real estate firm. The defendant objected because the real estate firm contract also included a listing agreement whereby it would receive a percentage of the purchase price on any sale of the building, and also provided it was to receive a surcharge on any necessary repairs.

Defendant could see no savings of time or money by using a third-party agent and was not agreeable to the terms proposed, so he continued to manage the business (Abbott Tours, Inc.) and the property (the Abbott Building) keeping invoices and can-celled checks for each supplier or serviceman who rendered services or supplies for the building.

This appeal is concerned with approximately $40,000 in payments made out of joint funds for maintenance of their joint property. Approximately $20,000 of that total represents money paid for a new air-conditioning system for the building and the remaining disbursements challenged represent janitorial services and miscellaneous expenses.

Plaintiff submits six categories of error in the trial court judgment and makes the following claims as her share with respect to each:

[1030]*1030DESCRIPTION CLAIM
1. Janitorial expenses $ 7,140.27
2. Legal fees 768.45
3. Mortgage account 301.78
4. Repairs by the Theil brothers 504.48
5. Flettrich Engineering (air-conditioning repairs) 10,605.47
6. Miscellaneous 530.79
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Total $19,851.24

Most of the disbursements involve expenses incurred in connection with the Abbott Building, a five-story office building containing 4,500 square feet per floor, purchased by the parties in 1977.

Plaintiff challenges all disbursements for janitorial services for the Abbott Building. She contends that Abbott Tours, Inc., defendant’s corporation, is responsible for these charges.

The evidence establishes that Abbott Tours occupies one floor of the five-story Abbott Building and pays $2,000 per month rent. Plaintiff claims payment for janitorial services for the entire building was part of Abbott Tours’ responsibility, in addition to the rent.

When the parties first acquired the building they hired a janitorial service company to perform these duties. They later found it more economical to discharge the service company and hire their own janitors.

Defendant contends such expenses were never the responsibility of Abbott Tours, but Abbott Tours paid these expenses as a convenience to the parties at a time the corporation was jointly owned by plaintiff and defendant. At that time it made no difference whether they paid the janitorial services themselves or had the corporation pay such expenses.

Abbott Tours maintained payroll records and had computer processing facilities for employees, while plaintiff and defendant as individuals did not. For this reason it was easier and more efficient to handle the janitorial personnel through Abbott Tours than for the parties to do it for themselves. Defendant began reimbursing Abbott Tours for janitorial expenses for the Abbott Building after November 2, 1981, the date defendant purchased plaintiff’s interest in Abbott Tours.

The trial court received all of the building leases and activities of the parties regarding the janitorial expenses and concluded that while Abbott Tours’ rent was below the present market value for office space, it was not grounds for objection if it was the rate agreed upon between the parties.

The court also noted it was not the lowest rent in the building, thus corroborating defendant’s contention the $2,000 figure was agreed upon at that time. It also noted the parties paid the janitorial expenses out of their undivided funds until they hired their own janitorial employees, thus supporting defendant’s position that the only reason for a change in procedure was for the convenience of the parties.

The court found the parties did agree to the rental rate of $2,000 for Abbott Tours and that it paid, and continues to pay, janitorial expenses solely as agent for the parties and is entitled, and will be entitled, to be reimbursed for these sums.

We agree with that conclusion.

Plaintiff complains of legal fees paid by defendant in the sum of $1,536.90 to Kenneth J. Berke. Prior to the separation and settlement of community property agreements Mr. Berke was the personal attorney of both parties as well as their attorney for business interests. Plaintiff contends that during the accounting period Mr. Berke was acting solely in the interest of defendant and that she received no benefit from these services.

However, defendant claims that to manage the jointly owned property it was necessary to enter into leases, collect delinquent rents and dispose of tenant controversies. Mr. Berke had performed legal services in connection with the property since its purchase and was familiar with the services required.

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Related

Garcia v. Garcia
491 So. 2d 1350 (Louisiana Court of Appeal, 1986)

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Bluebook (online)
456 So. 2d 1028, 1984 La. App. LEXIS 9443, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abbott-v-abbott-lactapp-1984.