In Re Succession of Moss

943 So. 2d 553, 2006 WL 3093242
CourtLouisiana Court of Appeal
DecidedNovember 2, 2006
DocketCW 2006-289, CA 2006-848
StatusPublished
Cited by3 cases

This text of 943 So. 2d 553 (In Re Succession of Moss) 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
In Re Succession of Moss, 943 So. 2d 553, 2006 WL 3093242 (La. Ct. App. 2006).

Opinion

943 So.2d 553 (2006)

SUCCESSION OF William J. MOSS.

Nos. CW 2006-289, CA 2006-848.

Court of Appeal of Louisiana, Third Circuit.

November 2, 2006.

*554 Kenneth A. Goodwin, New Orleans, LA, for Respondent, Coury Moss, Inc.

James Paul Lambert, Oscar E. Reed, Jr., The LaBorde Law Firm, Lafayette, LA, for Respondent, A. Sam Coury.

James Huey Gibson, Neil G. Vincent, David J. Ayo, Allen & Gooch, Lafayette, LA, for Applicant, Sharon K. Moss.

Court composed of SYLVIA R. COOKS, JOHN D. SAUNDERS, and MARC T. AMY, Judges.

AMY, Judge.

Mrs. Moss, individually, as dative testamentary executrix of her husband's succession, and as president of the closely held corporation in which the decedent was a shareholder, contests the trial court's Order Enforcing Final Judgment. She contends that the order requires the transfer of stock which she does not yet have in her possession and permits the opposing shareholder to escape the procedural requirements of La.R.S. 10:8-405. She also argues that the order erroneously compels performance by the corporation, a nonparty. Dr. Coury seeks a determination that this matter is not properly appealable. He also requests damages for frivolous appeal. We affirm.

Factual and Procedural Background

This case has an extensive history[1] and arrives again for review of an Order Enforcing Final Judgment. For purposes of discussion, we revisit a portion of the litigation's background.

Coury Moss, Inc. was established in 1979 by William J. Moss and A. Sam Coury. One thousand shares were issued in the closed corporation. Mr. Moss held 250 shares, while Dr. Coury held the remaining 750 shares. Per a Shareholders Agreement, also executed in 1979, Dr. Coury agreed to sell five hundred shares in the corporation, in one hundred share allotments, to Mr. Moss between 1980 and 1984. While Dr. Coury transferred three hundred shares between 1980 and 1982, he did not transfer the remaining two hundred shares. Mr. Moss died in 1989 while suit was pending as to the failure to transfer the remaining two hundred shares. Mr. Moss's wife, Sharon K. Moss, was named dative testamentary executrix of the Succession.

Coury Moss, Inc.'s Articles of Incorporation indicate that at the death of a shareholder owning twenty-five percent or more of the stock, his heirs or legal representatives are required to transfer "at book value, to the corporation, all of his stock, provided he or his legal heirs or representatives may retain up to 25% of the stock of [the] corporation."

*555 Following litigation as to the above provisions, a panel of this court ordered the partition of the 550 shares held by Mr. Moss and his interest in the two hundred shares that were not transferred in 1983 and 1984. See Succession of Moss, 00-62 (La.App. 3 Cir. 6/21/00), 769 So.2d 614, writ denied, 00-2834 (La.12/8/00), 776 So.2d 462. The court distributed one-half of the interest to Mrs. Moss and one-half to the Succession. The court ordered Mrs. Moss, in her individual capacity, and the Succession to pay Dr. Coury book value for the shares. Finally, the court instructed Mrs. Moss and the Succession to retain no more than a total of twenty-five percent of the shares and transfer the remainder to Coury Moss, Inc.

Subsequently, a judgment entered in an ongoing portion of this litigation determined that Dr. Coury had been compensated for the two hundred shares that he was required to transfer to Mrs. Moss and to the Succession. With regard to the value of the shares ordered returned to Coury Moss, Inc., another judgment indicated the "book value for two hundred fifty (250) shares of Coury Moss, Inc. stock was $95,212.50 upon the death of William J. Moss."

In October 2005, Dr. Coury filed a Motion to Execute Final Judgment and asserted that, pursuant to La.Code Civ.P. art. 2251[2], he was due enforcement of the judgment rendered in Succession of Moss, 769 So.2d 614. Dr. Coury submitted his affidavit and that of his attorney indicating that the stock certificates representing the two hundred shares of stock he was ordered to transfer to Mrs. Moss and the Succession were lost. He also filed an "Act of Transfer of Stock of Coury Moss, Inc." acknowledging the loss of the certificates and attempting to transfer one hundred of the shares of stock to Mrs. Moss and one hundred shares to the Succession.

Following a hearing, the trial court rendered the "Order Enforcing Final Judgment" now under review.[3] The Order enforced *556 the opinion rendered in Succession of Moss, 769 So.2d 614 and required Dr. Coury to request re-issuance of the stock according to the terms of La.R.S. 10:8-405. The trial court ordered Dr. Coury to personally indemnify the company for any loss associated with the original lost certificates. The trial court also ordered Mrs. Moss, as President of Coury Moss, Inc., to cancel the original certificates and issue one hundred shares to herself and one hundred shares to the Succession and then, pay $95,212.50 to herself and $95,212.50 to the Succession for the transfer of a total of five hundred shares to Coury Moss, Inc. The order declared that, after these transfers, Coury Moss, Inc. ownership would be as follows: Dr. Coury — 250 shares; Mrs. Moss — 125 shares; Succession of William J. Moss — 125 shares; CMI treasury — 500 shares. The trial court ordered that the required actions take place within thirty days.

Mrs. Moss, individually, as executrix of the succession, and as President of Coury Moss, Inc., suspensively appealed and also filed an application for review by supervisory writ. This court ordered the matters consolidated. In both filings, Mrs. Moss assigns the following as error:

I. The trial court erred in granting SAM COURY the relief he sought as he never complied with this Court's ruling in Succession of Moss, 2000-62 (La.App. 3 Cir. 6/21/00), 769 So.2d 614.
II. The trial court erred in holding that SAM COURY did not have to comply with the entirety of La. R.S. 10:8-405.
III. The trial court erred in ordering Sharon K. Moss, in her capacity as President of Coury Moss, Inc., to cause Coury Moss, Inc., a non-party, to perform certain non-ministerial acts as such relief is not available via mandamus or mandamus-like procedure and can only be brought via ordinary procedure against CMI as a party.

Dr. Coury answered the appeal, arguing that there is no review by appeal of what he terms an "executory order" of the trial court and, thus, an injunction or review by supervisory writ are the only available relief. He also seeks damages for frivolous appeal.

Discussion

Prematurity

As she did below, Mrs. Moss argues that enforcement of the appellate decision is premature. She contends that Dr. Coury has not yet properly transferred the two hundred shares that remain due under the Shareholders Agreement. The transfer was required by final judgments in Succession of Moss, 769 So.2d 614 and in Moss v. Coury, 97-640 (La.App. 3 Cir. 12/10/97), 704 So.2d 1248, writ denied, 98-0783 (La.5/29/98), 720 So.2d 340. Mrs. Moss contends that without this initial transfer, she and the Succession are in possession of only 550 shares and, thus, they cannot comply with the order insofar as it orders the transfer of five hundred shares to Coury Moss, Inc. and the retention of 125 *557 shares for herself and 125 for the Succession.

This prematurity argument ignores those portions of the order that focus on Dr.

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Related

Coury v. Moss
529 F.3d 579 (Fifth Circuit, 2008)
Coury Moss, Inc. v. Coury
981 So. 2d 936 (Louisiana Court of Appeal, 2008)
Coury Moss, Inc. v. A. Sam Coury
Louisiana Court of Appeal, 2008
In Re Succession of Moss
980 So. 2d 120 (Louisiana Court of Appeal, 2008)
Succession of William J. Moss
Louisiana Court of Appeal, 2008

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Bluebook (online)
943 So. 2d 553, 2006 WL 3093242, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-succession-of-moss-lactapp-2006.