Rosenkrantz v. BATON ROUGE PSYCH. ASSOC.

657 So. 2d 1353, 1995 WL 377148
CourtLouisiana Court of Appeal
DecidedJune 23, 1995
Docket94 CA 2340
StatusPublished
Cited by3 cases

This text of 657 So. 2d 1353 (Rosenkrantz v. BATON ROUGE PSYCH. ASSOC.) 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
Rosenkrantz v. BATON ROUGE PSYCH. ASSOC., 657 So. 2d 1353, 1995 WL 377148 (La. Ct. App. 1995).

Opinion

657 So.2d 1353 (1995)

Arthur L. ROSENKRANTZ
v.
BATON ROUGE PSYCHOLOGICAL ASSOCIATES, Darlyne Gaynor Nemeth, Cary D. Rostow, and Joseph G. Delatte, Jr.

No. 94 CA 2340.

Court of Appeal of Louisiana, First Circuit.

June 23, 1995.
Rehearing Denied August 17, 1995.

J. Peyton Parker, Jr., Baton Rouge, for plaintiff-appellee Arthur L. Rosenkrantz.

Thomas H. Benton, Baton Rouge, for defendants-appellants Darlyne G. Nemeth and Cary Rostow.

Before WATKINS and FOGG, JJ., and TANNER,[1] J. Pro Tem.

WATKINS, Judge.

This suit involves the departure of the plaintiff, Mr. Arthur L. Rosenkrantz, from the partnership of Nemeth, Rostow and Rosenkrantz (Partnership) and the purchase by the remaining partners of his interest in the Partnership.

*1354 The Partnership was created on December 26, 1984, for the purpose of building an office facility in which the partners could practice their profession as clinical psychologists. The construction of the building was financed through industrial bonds which required a lease to guarantee the use of the building for its stated purpose. To this end a tenants' organization, the Baton Rouge Psychological Associates (Associates), was created that included the partners and several other associates practicing in the field of psychology. The Associates executed a lease with the Partnership in conformity with the bond requirements and became tenants of the building. The plaintiff practiced with the Associates until the early part of 1992 when he decided to move his practice to New Orleans. Negotiations began between the plaintiff and the remaining partners, Darlyne Nemeth and Cary Rostow, for the purchase of the plaintiff's 20 percent share of the Partnership. The only asset of the Partnership was the building.

The plaintiff filed the instant suit on August 13, 1992, to establish the value of the real estate owned by the Partnership; to establish the value of the leasehold interest held by the Partnership; for reimbursement to plaintiff for rental monies not transferred to the Partnership account; for expenses paid by the Partnership that should have been paid by the lessees in accordance with the lease agreement, and for general damages for alleged breaches of fiduciary duties.[2] Defendants filed a reconventional demand for specific performance of the Partnership Agreement with regard to the completion of the arbitration process for valuation of Partnership property. Defendants further sought attorney's fees and costs pursuant to the Partnership Agreement.

After a two day bench trial held on July 27 and 28, 1993, the court determined the value of the property to be $402,000.00 and awarded the plaintiff his 20% interest in that amount. The court dismissed the plaintiff's claim for violation of fiduciary obligations and accepted the defendants' final accounting. A judgment to that effect was executed on November 2, 1993. On that same date plaintiff filed a motion for a partial new trial alleging that the judgment was contrary to the law and evidence because it failed to award the plaintiff any interest in the lease between the Partnership and the Associates. Thereafter, the defendants filed a motion to amend the November 2, 1993 judgment, to correct omissions. The court granted the motion to amend and signed an amended judgment on November 12, 1993.

Plaintiff's motion for new trial was heard on April 25, 1994. The court permitted the testimony of Mr. John LeJeune regarding the value of the lease. The court granted the motion and awarded the plaintiff $30,000.00 to compensate him for the lease revenues he would have received as a partner. An amended judgment to that effect was signed on May 4, 1994. The defendants, thereafter, filed a motion to amend the judgment and a motion for new trial. The trial court denied both motions.

The defendants appealed alleging that: (1) the trial court erred in refusing to require arbitration to value the immovable assets pursuant to the provisions of the Articles of Partnership, and (2) the trial court abused its discretion by granting a partial motion for new trial. Plaintiff answered the appeal alleging that: (1) the trial court erred in failing to award the plaintiff $44,471.80 for the misapplication of partnership funds, and (2) the trial court erred in failing to award general damages for breach of the defendants' fiduciary obligations to the plaintiff.

ARBITRATION

The defendants argue in this assignment of error that the agreement between the parties is a binding arbitration agreement and plaintiff's failure to follow the arbitration procedures set forth in the agreement forecloses *1355 him from recovering in this lawsuit. They contend that instead, the filing of this lawsuit prior to completion of the appraisal process voided the process, making the first appraisal final and binding. The plaintiff gave formal notice of his termination from the partnership effective May 1, 1992, and the defendants exercised their right to purchase the interest of the plaintiff and gave notice of that fact under the terms of Article VIII of the Articles of Partnership, which provides:

2. The purchase price for any Departing Partner's interest in the Partnership shall be determined as follows: The property shall be appraised on the basis of the then current market value by a competent appraiser selected by the Partnership. The Departing Partner ... shall have the right to retain an appraiser who is qualified to appraise the Property at his expense. If there is a difference between the two appraised values and if the two appraisers cannot reach an agreement as to a mutually agreed fair market value for the Property, then the two appraisers shall select a third appraiser whose expense shall be equally shared by the Partnership and the Departing Partner.... The conclusion of said third appraiser as to the fair market value of the Property shall be binding and final on all of the parties for purposes hereof. The appraiser selected by the Partnership shall render his opinion within ninety (90) days after the effective date of withdrawal of the Departing Partner from the Association. If an appraiser is selected by the Departing Partner ... then said appraiser shall render his report within thirty (30) days after receipt by the Departing Partner or the legal representative of the appraisal report prepared by the appraiser selected by the Partnership. If the opinion of a third appraiser is necessary, then said appraiser shall be selected and shall render his opinion within thirty (30) days following his delivery of the report to this Partnership by the Departing Partner or the legal representative as the case may be.

In accordance with the agreement, the Partnership selected Mr. William F. Cobb, a qualified real estate appraiser, to appraise the current market value of the property. Plaintiff made no objection to the selection of Mr. Cobb. On May 27, 1992, Mr. Cobb appraised the property at $285,000.00, which was $103,805 less than the outstanding balance on the original loan. The defendants offered the plaintiff a settlement based on the remaining balance of the loan which the plaintiff refused. Instead, the plaintiff hired Mr. Jack Evans to appraise the property. Mr. Evans failed to timely perform the appraisal, and by mutual agreement the parties extended the time limit to allow the plaintiff to hire Mr. John LeJeune to appraise the property. Prior to the completion of Mr. LeJeune's appraisal, the plaintiff filed the instant suit. The trial court made the following findings with regard to the appraisal of the property:

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Cite This Page — Counsel Stack

Bluebook (online)
657 So. 2d 1353, 1995 WL 377148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosenkrantz-v-baton-rouge-psych-assoc-lactapp-1995.