Autin-Germany v. Germany

789 So. 2d 608, 2001 WL 363517
CourtLouisiana Court of Appeal
DecidedApril 11, 2001
Docket00-CA-1924
StatusPublished
Cited by2 cases

This text of 789 So. 2d 608 (Autin-Germany v. Germany) 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
Autin-Germany v. Germany, 789 So. 2d 608, 2001 WL 363517 (La. Ct. App. 2001).

Opinion

789 So.2d 608 (2001)

Nancy H. AUTIN-GERMANY
v.
Sammy Clark GERMANY.

No. 00-CA-1924.

Court of Appeal of Louisiana, Fifth Circuit.

April 11, 2001.

*609 Robert C. Lowe, David M. Prados, Lowe, Stein, Hoffman, Allweiss & Hauver, New Orleans, LA, for defendant-appellant.

Wiley J. Beevers, Raylyn R. Beevers, Bernard M. Plaia, Gretna, LA, for plaintiff-appellee.

Court composed of Judges ROTHSCHILD, SCHOTT, Pro Tempore, and CIACCIO, Pro Tempore.

PATRICK M. SCHOTT, Judge, Pro Tempore.

Sammy Clark Germany, defendant, appealed from a judgment in favor of his divorced wife, Nancy Autin Germany, plaintiff, recognizing and enforcing a purported July 1998 agreement to make a property settlement. The issues are whether a valid contract was confected at that time from an exchange of letters between the attorneys for the parties or whether the parties are bound by a stipulation of a settlement made in open court in October 1998.

The parties were married on October 29, 1994, and agreed to a separate property regime. They both filed petitions for divorce, and, on December 1, 1998, they were divorced. After they filed their respective petitions, they began negotiating a settlement of their property. On July 2, 1998, defendant's counsel sent a letter containing a settlement proposal to plaintiff's counsel. On July 8, 1998, plaintiff's counsel in the letter stated that the proposal was accepted, but she made changes in the terms of defendant's proposal. The parties never acted on these letters.

Plaintiff's counsel resigned September 17, 1998, and, on September 25, 1998, the defendant filed a Motion to Reset and to Compel Responses to Discovery, wherein he requested that his rules previously set for June 29, 1998, and continued, be reset, and that responses to his discovery requests be compelled. The trial judge set the motions for hearing on October 15, *610 1998. On October 14, 1998, the parties discussed the terms of a final property settlement on the telephone, plaintiff typed the terms of the proposal as they discussed them, and she then faxed to defendant a document twice declaring, at the top of the document and at the bottom, that this was the final settlement. The word "final" at the bottom of the page is in capital letters and is followed by an exclamation point.

On October 15, 1998, the parties appeared on the Motion to Reset and Compel, and before the proceedings began, the parties discussed revising several terms, and reached a settlement. When the hearing began, defense counsel immediately stated that he wished to put a stipulation on the record because the parties had reached a settlement of the entire property partition. With the trial judge's permission, he explained in open court that the parties were originally there on two motions, but that, since they reached a settlement, they simply wished to dictate that settlement into the record so that it would be considered a transaction or compromise and the parties would be bound by its terms. The stipulation resembled the language from the final settlement that plaintiff had typed the day before, but it was more specific. At the conclusion of the stipulation, the trial judge asked the parties if they heard the terms of the stipulation and consent agreement, and each replied, "Yes, sir." He then asked them if they both agreed to it, and each replied again, "Yes, sir." The basic terms of the agreement, as read in open court, are as follows: Plaintiff was to deliver to defendant, that day, specific items of jewelry. Defendant was to deliver $9,000.00 cash to plaintiff for her interest in their Volvo in exchange for her signing over the title and other necessary documents to transfer full ownership to defendant, that day. Defendant, however, permitted plaintiff to use the vehicle for thirty days. Plaintiff was obligated to list their home for sale immediately and pay defendant $32,500.00 at the time of sale, or within one year from October 15, 1998, or whichever came first. If she paid him the money before the sale or before nine months elapsed, she would be entitled to a one percent reduction in the $32,500.00. Plaintiff also was required to sign a promissory note immediately, payable on demand within one year or upon the sale of the house. The note was to be secured by a second mortgage on the house.[1]

Immediately after the hearing, the parties went together to the bank for the defendant to get a $9,000.00 cashier's check, which he immediately gave to plaintiff, as prescribed by the settlement. The plaintiff returned to defendant the jewelry specified in the stipulation. Twenty days later, she delivered to defendant the furniture, vehicle, and the vehicle's title, registration, keys and remote locking device. She asked defendant to sign a receipt indicating that "The Volvo was returned 10 days ahead of the due date." The due date referenced was obviously the 30-day due date in the stipulation. Further, she wrote to defendant's counsel on November 11, 1998, requesting the judgment, promissory note and mortgage, and on November 13, 1998, wrote to him stating that she had *611 requested a transcript to ensure the judgment brought to the trial judge would be consistent with the terms of the stipulation. On December 15, 1998, she responded to defense counsel's letter of the same date requesting return of all Volvo accoutrements by stating that her actions were being done "in fulfillment of our agreement."

The plaintiff refused to sign the judgment reflecting the stipulation, wherein her duties relative to the promissory note and mortgage were outlined. Defendant then filed a Rule to Compel Signing of Judgment, Promissory Note, and Mortgage, and Rule for Contempt on December 9, 1998. On January 20, 1999, present counsel for plaintiff became her counsel of record. On May 13, 1999, defendant filed an amended rule seeking to enforce the stipulation of October 15, 1998. After numerous continuances and skirmishes over discovery, defendant, on April 28, 2000, filed a motion to reset his rule, and it was scheduled for a hearing on May 30, 2000. On May 3, 2000, plaintiff filed a Rule to Enforce Transaction or Compromise Agreement, alleging for the first time that the parties' exchange of letters in July 1998 effected a transaction or compromise.

The conflicting rules were tried on July 19, 2000. The judge rendered judgment for defendant with reasons on August 29, 2000 in which he concluded that the parties entered into a transaction and compromise when their lawyers exchanged letters in July. The trial judge reasoned that plaintiff, who was unrepresented at the October 15, 1998 hearing, honestly believed that, at the hearing, they were completing the agreement in the July letters, and further, that the July agreement was valid and enforceable. The trial judge found that the July agreement "primes" the October agreement because, in July, the parties formed a valid contract, and so, the property dispute ended because plaintiff was unrepresented and under the influence of medication at the October 15, 1998 hearing.

We first consider whether the parties entered into a compromise when their lawyers exchanged letters in July 1998. A compromise is an agreement or contract between two or more persons. LSA-C.C. arts. 3071, 1906. A contract is formed by the consent of the parties through offer and acceptance. LSA-C.C. art.1927. An acceptance not in accordance with the terms of the offer is deemed to be a counteroffer. LSA-C.C. art.1943. Unless a counteroffer is accepted, there is no contract.

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Cite This Page — Counsel Stack

Bluebook (online)
789 So. 2d 608, 2001 WL 363517, Counsel Stack Legal Research, https://law.counselstack.com/opinion/autin-germany-v-germany-lactapp-2001.