Lowman v. Merrick

960 So. 2d 84, 2007 WL 858822
CourtLouisiana Court of Appeal
DecidedMarch 23, 2007
Docket2006 CA 0921
StatusPublished
Cited by12 cases

This text of 960 So. 2d 84 (Lowman v. Merrick) 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
Lowman v. Merrick, 960 So. 2d 84, 2007 WL 858822 (La. Ct. App. 2007).

Opinion

960 So.2d 84 (2007)

Joanna Wurtele LOWMAN
v.
Edward J. MERRICK, Jr., Frank Erwin Merrick and Noemie Garrett Merrick, II.

No. 2006 CA 0921.

Court of Appeal of Louisiana, First Circuit.

March 23, 2007.

*85 C. Jerome D'Aquila, New Roads, Joseph M. Bruno, New Orleans, Counsel for Plaintiff/Appellee Joanna Wurtele Lowman.

Terry T. Dunlevy, Baton Rouge, Counsel for Defendants/Appellants Edward J. Merrick, Jr. and Frank Erwin Merrick.

J. Tracy Mitchell, Keith Friley, Baton Rouge, Counsel for Defendant/Appellant Noemie Garrett Merrick, II.

Before: KUHN, GAIDRY, and WELCH, JJ.

KUHN, J.

This appeal addresses the validity of an option to purchase property owned by defendants-appellants, Edward J. Merrick, Jr., Frank Erwin Merrick, and Noemie Garrett Merrick, II ("Noemie II"), and whether the option was properly exercised by plaintiff-appellee, Joanna Wurtele Lowman ("Joanna").[1] The dispute between the parties arises out of the settlement of the estate of their deceased mother, Noemie Garrett Merrick ("Noemie"). After plaintiff filed suit seeking to enforce the *86 option, defendants reconvened seeking to enforce other terms of the settlement agreement. After trial of the main demand, the trial court signed a November 29, 2005 judgment decreeing that Joanna was entitled to specific performance of the option. The defendants have appealed this judgment, and we affirm.

I. PROCEDURAL AND FACTUAL BACKGROUND

The facts related to the option dispute are largely undisputed. Joanna is the daughter of Alan Wurtele and Noemie G. (Wurtele) Merrick. After Mr. Wurtele died, Noemie married Edward J. Merrick, Sr., and of this marriage, three children were born: Edward, Frank, and Noemie II.

In 1973, years after Mr. Wurtele's death, Joanna and Noemie executed an act of partition that divided the former community property held by Noemie and the late Alan Wurtele, whereby Joanna received her interest in the property of the former estate of her father. Edward J. Merrick, Merrick, Sr. died in 1992, and a judgment of possession was signed in 1993. Noemie died in 1994, and the three Merrick siblings served as joint testamentary executors of her estate.

According to Joanna, Noemie bequeathed her estate to the three Merrick children, after asking Joanna not to participate in her succession. Ultimately, Joanna filed suit seeking her "forced one-eighth" interest of Noemie's estate. During the administration of the estate to settle Joanna's claim, counsel for the respective parties signed a "Stipulation" on February 8, 1996. Thereafter, the trial court that handled the succession proceedings signed a partial judgment of possession on April 3, 1996, and a final judgment of possession on October 30, 2000.

The February 8, 1996 Stipulation was signed by Francis A. Smith, Jr., who signed in his capacity as attorney for the Merrick brothers; J. Tracy Mitchell, who signed in his capacity as attorney for Noemie II; and J. Huntington Odom, who signed in his capacity as attorney for Joanna. The settlement provided as follows, in pertinent part:

Now into Court, through their undersigned counsel, come [Edward, Frank, and Noemie II] and [Joanna], who do enter into the following stipulation:
. . .
Joanna has filed a petition to be recognized as a forced heir of the decedent and to be recognized as entitled to her legitime. . . .
In order to obviate the expense of protracted litigation and the uncertainty of result of that litigation, the parties have agreed to a settlement wherein [Joanna], the forced heir, will receive the property described in the . . . letter agreement dated January 31, 1996, between Francis A. Smith, Jr., [attorney for Merrick Brothers] . . . and J. Huntington Odom, attorney for [Joanna] . . . which letter is made a part hereof by reference, the said letter agreement being adopted by [Noemie II] as fully as if the same had been signed by her counsel.
In addition to the terms and conditions set forth in the letter agreement, the parties further agree as follows:
. . .
7. It is understood and agreed that [Joanna] reserves all rights that she now has or hereafter may acquire to make claim for all or any particular items of furniture . . . wherever the same may be located. . . .
*87 8. It is further stipulated that no party hereto shall take any item from the family home without the written consent of all three Joint Executors. This constraint shall apply until Joanna shall have obtained a Judgment of Possession placing her in possession of the family home and shall have taken physical possession of the home. Thereafter, Joanna shall be responsible for the contents of the home.

Just prior to the February 8, 1996 Stipulation, Mr. Smith sent a letter to Mr. Odom (the "January 31, 1996 letter agreement"), which provided, in pertinent part:

My clients [Merrick brothers] believe that a fair and equitable settlement with your client is in the best interests of the succession and all of its heirs and legatees. For this reason, they have offered in settlement to your client . . . said offer of settlement and agreement being as follows:
. . .
(5) Joanna would have the option of acquiring an additional 145 feet of riverbank in front of the homeplace (giving her the option of owning the full 420 feet of river frontage corresponding with the full width of the homeplace) by paying the sum of $600.00 per foot for same. In lieu of paying for said 145 additional feet as set forth above, she would have the option of exchanging the northernmost 217.5 feet of her riverbank footage (acquired by her in the prior partition with her mother) for the 145 feet in front of the homeplace, said option to be effective for a period of one (1) year from the date a final Judgment of Possession is signed in Mrs. [Noemie] Merrick's succession.

The April 3, 1996 "Partial Judgment of Possession and Judgment Reducing Excessive Donations" provided in part that Joanna was granted an option to buy the property in question:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that [Joanna] is further recognized, as being entitled to and she is hereby granted the option to acquire the following described property, all as set forth in the Stipulation and agreement filed into the record of this proceeding, and attached to the Petition for Possession filed herein, for the consideration set forth therein, said option to be effective for a period of one (1) year from the date a final Judgment of Possession is rendered in this succession. . . .

Thereafter, Mrs. Clover N. Drinkwater, counsel for Joanna, sent a letter on June 23, 2000, to Mr. Smith that stated:

This letter is to advise you that [Joanna] elects to exercise the option conveyed to her by letter agreement dated January 31, 1996, to purchase the 145 feet of riverbank in front of her property for the sum of $600.00 per foot. Please forward an executed deed to me for same which I will hold in escrow pending the forwarding of the consideration to you.

On October 30, 2000, the trial court signed a "Judgment of Possession," which ordered that Edward, Frank, and Noemie II were entitled to the ownership of and were sent into possession of all of Noemie's property.

By letter dated December 4, 2000, Mr. J. Tracy Mitchell, counsel for Noemie II, sent a letter to Joanna[2]

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Elizabeth Webb v. Daniel Andrew Webb
263 So. 3d 321 (Supreme Court of Louisiana, 2018)
Hawkins v. Meridian Res. & Exploration LLC
236 So. 3d 610 (Louisiana Court of Appeal, 2017)
Hancock Bank of Louisiana v. C & O Enterprises, LLC
168 So. 3d 595 (Louisiana Court of Appeal, 2014)
Watts v. Georgia-Pacific Corp.
135 So. 3d 53 (Louisiana Court of Appeal, 2013)
Ghassemi v. Ghassemi
103 So. 3d 401 (Louisiana Court of Appeal, 2012)
Fornerette v. Ward
66 So. 3d 516 (Louisiana Court of Appeal, 2011)
Parish of Iberville Sales Tax Department v. City of St. Gabriel
21 So. 3d 955 (Louisiana Court of Appeal, 2009)
Andrews v. McCann
978 So. 2d 1259 (Louisiana Court of Appeal, 2008)
Kelda Wells v. Melvin Price
Louisiana Court of Appeal, 2007

Cite This Page — Counsel Stack

Bluebook (online)
960 So. 2d 84, 2007 WL 858822, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowman-v-merrick-lactapp-2007.