SUCCESSION OF MARGERY * NO. 2019-CA-1101 ALAYNICK KIRSCHMAN * COURT OF APPEAL * . FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-07544, DIVISION “C” Honorable Sidney H. Cates, Judge ****** JAMES F. MCKAY III CHIEF JUDGE ****** (Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Dale N. Atkins)
JACQUES F. BEZOU JACQUES F. BEZOU, JR. ERICA A. HYLA THE BEZOU LAW FIRM 534 E. Boston Street Covington, Louisiana 70433 COUNSEL FOR PLAINTIFF/APPELLANT
RAYMOND B. LANDRY MOLLERE FLANAGAN & LANDRY, L.L.C. 2341 Metairie Road Metairie, Louisiana 70001 -and- RICHARD C. STANLEY JENNIFER L. THORNTON KATHRYN W. MUNSON STANLEY REUTER ROSS THORNTON & ALFORD, LLC 909 Poydras Street, Suite 2500 New Orleans, Louisiana 70112 COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED
JULY 1, 2020 JFM TGC This appeal stems from a dispute between two brothers, Arnold Kirschman DNA (“Arnold”) and Richard Kirschman (“Richard”), co-executors for the estate of
their mother, Margery Kirschman. Arnold appeals the August 14, 2019 judgment,
ordering the parties to execute a traditional act of mortgage in connection with the
administration of the succession. That ruling is the only issue before this Court on
appeal. For the reasons set forth below, we affirm the judgment of the trial court.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Disputes arose between the Kirschman brothers related to the management
and administration of their mother’s estate. Following court-ordered mediation,
they executed a Settlement Agreement on January 28, 2019. The Settlement
Agreement was filed under seal and made a judgment of the trial court by a
Consent Judgment dated January 31, 2019. Thereafter, the brothers disagreed on
the implementation of certain terms of the Settlement Agreement.
Pertinent to this appeal, the Settlement Agreement provided that Arnold’s
company, Morris Kirschman & Co., LLC (“MKC”), would execute a mortgage in
1 favor of the Richard’s Education Trust. Specifically, paragraph 4.2 (b) of the
Settlement Agreement provided:
MKC Note 2 will be secured by two first mortgages on two (2) properties owned by MKC, the aggregate value of which properties is $500,000 or more as determined by the Municipal assessed value for 2018. This security will be provided only if this Agreement is executed in finalized form on or before January 29, 2019 at 5 pm central time.
After the Settlement Agreement was executed, Richard’s attorney drafted a
standard multiple indebtedness mortgage. By email, Arnold’s attorney objected to
the multiple indebtedness mortgage, representing instead that the Settlement
Agreement provided for a conventional mortgage. In response to that objection,
Richard’s attorney prepared a standard conventional mortgage. Arnold refused to
sign Richard’s proposed conventional mortgage, seeking to have certain provisions
stricken from the document that he considered too onerous. In response, Richard
filed a Motion to Enforce Settlement Agreement.
The trial court heard the matter on April 12, 2019. At that time, the only
unresolved issue between Arnold and Richard was the form of mortgage required
by the Settlement Agreement. All other disputes had been resolved.
In opposition to the motion, Arnold explained that he refused to sign the
conventional mortgage that Richard prepared because the form of the mortgage
enlarged the material terms of the Settlement Agreement. Richard countered that
the mortgage he prepared was a basic form of a conventional mortgage found in
the Louisiana Practice Series – Louisiana Real Estate Transactions.
2 The trial court found in favor of Richard and ordered the parties to execute
“a traditional form Act of Mortgage set forth in the Louisiana Practice Real Estate
Series (2d ed.) €13:63.” In reasons for judgment, the trial court stated:
This case has already been a very litigious court battle. The form of mortgage presented by Richard Kirschman included all the standard safeguards and procedural devices that expedite a resolution of these types of disputes. However, Arnold Kirschman seeks to have many of the standard applicable waivers of these security devices removed, inevitably ensuring a prolonged and extended litigation in the event of default.
Arnold timely appealed the judgment.
LAW AND ANALYSIS
On appeal, Arnold asserts that the trial court erred in finding that the form of
mortgage submitted by Richard was the form of conventional mortgage
contemplated by the Settlement Agreement. Richard has filed a Motion to Dismiss
Appeal, arguing that the trial court’s judgment was not final and appealable.
Motion to Dismiss Appeal
Before reaching the merits, we must first address the jurisdictional issue of
whether the trial court’s judgment is final and appealable, as raised in the Motion
to Dismiss. The motion asserts that the August 14, 2019 judgment is an
interlocutory judgment. Specifically, Richard argues that the judgment granting
the Motion to Enforce Settlement Agreement does not dispose of the entire matter
because his mother’s succession remains open. Moreover, Richard maintains that
the judgment is not reviewable under this Court’s supervisory jurisdiction, i.e., it
3 cannot be converted to a writ, because the appeal was filed more than thirty days
after the judgment was rendered.
In opposition, Arnold argues that the trial court’s judgment is a final and
appealable judgment. Arnold acknowledges that the succession is ongoing.
However, he submits that with the resolution of the Settlement Agreement, there is
nothing left for the brothers to litigate.
La. C.C.P. art. 1841 provides:
A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final.
A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.
A judgment that determines the merits in whole or in part is a final judgment.
Here, the record reveals that the contentious matters that arose between
Richard and Arnold in this succession proceeding were resolved after mediation
resulted in the Settlement Agreement and Consent Judgment. According to the
recitals made in the Settlement Agreement, the brothers desired to settle and
compromise “totally and finally” all claims between them in both the succession
and a separate lawsuit filed by Richard against Arnold.1
The Settlement Agreement included the requirement that Arnold’s company
execute a mortgage in favor of a trust held by Richard. Thereafter, as both parties
have acknowledged, the only dispute before the trial court was the form of
1 In connection with their disputes over the co-management of their mother’s estate, Richard filed a separate suit against Arnold after the succession was opened. This suit was transferred to the same division of the Civil District Court as the succession, but the matters were not consolidated. 4 mortgage contemplated by the Settlement Agreement. The trial court recognized
in its judgment that “the sole issue before the Court is deciding the form of
mortgage the parties must execute in order to comply with the settlement
agreement.” The resolution of that remaining issue by the trial court disposed of
the entire matter and would have resulted in the dismissal of all claims raised
between Arnold and Richard.
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SUCCESSION OF MARGERY * NO. 2019-CA-1101 ALAYNICK KIRSCHMAN * COURT OF APPEAL * . FOURTH CIRCUIT * STATE OF LOUISIANA *******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2016-07544, DIVISION “C” Honorable Sidney H. Cates, Judge ****** JAMES F. MCKAY III CHIEF JUDGE ****** (Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Dale N. Atkins)
JACQUES F. BEZOU JACQUES F. BEZOU, JR. ERICA A. HYLA THE BEZOU LAW FIRM 534 E. Boston Street Covington, Louisiana 70433 COUNSEL FOR PLAINTIFF/APPELLANT
RAYMOND B. LANDRY MOLLERE FLANAGAN & LANDRY, L.L.C. 2341 Metairie Road Metairie, Louisiana 70001 -and- RICHARD C. STANLEY JENNIFER L. THORNTON KATHRYN W. MUNSON STANLEY REUTER ROSS THORNTON & ALFORD, LLC 909 Poydras Street, Suite 2500 New Orleans, Louisiana 70112 COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED
JULY 1, 2020 JFM TGC This appeal stems from a dispute between two brothers, Arnold Kirschman DNA (“Arnold”) and Richard Kirschman (“Richard”), co-executors for the estate of
their mother, Margery Kirschman. Arnold appeals the August 14, 2019 judgment,
ordering the parties to execute a traditional act of mortgage in connection with the
administration of the succession. That ruling is the only issue before this Court on
appeal. For the reasons set forth below, we affirm the judgment of the trial court.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
Disputes arose between the Kirschman brothers related to the management
and administration of their mother’s estate. Following court-ordered mediation,
they executed a Settlement Agreement on January 28, 2019. The Settlement
Agreement was filed under seal and made a judgment of the trial court by a
Consent Judgment dated January 31, 2019. Thereafter, the brothers disagreed on
the implementation of certain terms of the Settlement Agreement.
Pertinent to this appeal, the Settlement Agreement provided that Arnold’s
company, Morris Kirschman & Co., LLC (“MKC”), would execute a mortgage in
1 favor of the Richard’s Education Trust. Specifically, paragraph 4.2 (b) of the
Settlement Agreement provided:
MKC Note 2 will be secured by two first mortgages on two (2) properties owned by MKC, the aggregate value of which properties is $500,000 or more as determined by the Municipal assessed value for 2018. This security will be provided only if this Agreement is executed in finalized form on or before January 29, 2019 at 5 pm central time.
After the Settlement Agreement was executed, Richard’s attorney drafted a
standard multiple indebtedness mortgage. By email, Arnold’s attorney objected to
the multiple indebtedness mortgage, representing instead that the Settlement
Agreement provided for a conventional mortgage. In response to that objection,
Richard’s attorney prepared a standard conventional mortgage. Arnold refused to
sign Richard’s proposed conventional mortgage, seeking to have certain provisions
stricken from the document that he considered too onerous. In response, Richard
filed a Motion to Enforce Settlement Agreement.
The trial court heard the matter on April 12, 2019. At that time, the only
unresolved issue between Arnold and Richard was the form of mortgage required
by the Settlement Agreement. All other disputes had been resolved.
In opposition to the motion, Arnold explained that he refused to sign the
conventional mortgage that Richard prepared because the form of the mortgage
enlarged the material terms of the Settlement Agreement. Richard countered that
the mortgage he prepared was a basic form of a conventional mortgage found in
the Louisiana Practice Series – Louisiana Real Estate Transactions.
2 The trial court found in favor of Richard and ordered the parties to execute
“a traditional form Act of Mortgage set forth in the Louisiana Practice Real Estate
Series (2d ed.) €13:63.” In reasons for judgment, the trial court stated:
This case has already been a very litigious court battle. The form of mortgage presented by Richard Kirschman included all the standard safeguards and procedural devices that expedite a resolution of these types of disputes. However, Arnold Kirschman seeks to have many of the standard applicable waivers of these security devices removed, inevitably ensuring a prolonged and extended litigation in the event of default.
Arnold timely appealed the judgment.
LAW AND ANALYSIS
On appeal, Arnold asserts that the trial court erred in finding that the form of
mortgage submitted by Richard was the form of conventional mortgage
contemplated by the Settlement Agreement. Richard has filed a Motion to Dismiss
Appeal, arguing that the trial court’s judgment was not final and appealable.
Motion to Dismiss Appeal
Before reaching the merits, we must first address the jurisdictional issue of
whether the trial court’s judgment is final and appealable, as raised in the Motion
to Dismiss. The motion asserts that the August 14, 2019 judgment is an
interlocutory judgment. Specifically, Richard argues that the judgment granting
the Motion to Enforce Settlement Agreement does not dispose of the entire matter
because his mother’s succession remains open. Moreover, Richard maintains that
the judgment is not reviewable under this Court’s supervisory jurisdiction, i.e., it
3 cannot be converted to a writ, because the appeal was filed more than thirty days
after the judgment was rendered.
In opposition, Arnold argues that the trial court’s judgment is a final and
appealable judgment. Arnold acknowledges that the succession is ongoing.
However, he submits that with the resolution of the Settlement Agreement, there is
nothing left for the brothers to litigate.
La. C.C.P. art. 1841 provides:
A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final.
A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.
A judgment that determines the merits in whole or in part is a final judgment.
Here, the record reveals that the contentious matters that arose between
Richard and Arnold in this succession proceeding were resolved after mediation
resulted in the Settlement Agreement and Consent Judgment. According to the
recitals made in the Settlement Agreement, the brothers desired to settle and
compromise “totally and finally” all claims between them in both the succession
and a separate lawsuit filed by Richard against Arnold.1
The Settlement Agreement included the requirement that Arnold’s company
execute a mortgage in favor of a trust held by Richard. Thereafter, as both parties
have acknowledged, the only dispute before the trial court was the form of
1 In connection with their disputes over the co-management of their mother’s estate, Richard filed a separate suit against Arnold after the succession was opened. This suit was transferred to the same division of the Civil District Court as the succession, but the matters were not consolidated. 4 mortgage contemplated by the Settlement Agreement. The trial court recognized
in its judgment that “the sole issue before the Court is deciding the form of
mortgage the parties must execute in order to comply with the settlement
agreement.” The resolution of that remaining issue by the trial court disposed of
the entire matter and would have resulted in the dismissal of all claims raised
between Arnold and Richard. Thus, the trial court’s judgment is final and
appealable. The Motion to Dismiss Appeal is hereby denied. We turn now to the
merits of this appeal.
Standard of Review
It is well established that “[t]his Court reviews a judgment granting a motion
to enforce settlement under the manifest error or clearly wrong standard of
review.” 800 Iberville St. Limited P’ship v. V. Restaurant Group, LLC, 2016-0799
p. 9 (La. App. 4 Cir. 6/7/17), 221 So.3d 205, 210 (citing Howard v. La. Citizens
Prop. Ins. Corp., 2010-1302, pp. 2-3 (La. App. 4 Cir. 4/27/11), 65 So.3d 697, 699).
The manifest error standard requires that this Court review the record in its
entirety, not to determine whether the trial court’s findings are wrong, but whether
they find reasonable support in the record, even though the reviewing court is
convinced that its interpretation is more reasonable. Stobart v. State through Dep’t
of Transp. and Dev., 617 So.2d 880 (La. 1993). As this Court reiterated in Reed v
7631 Burthe Street, LLC, p. 10 2017-0476, p. 11 (La. App. 4 Cir. 12/28/17), 234
So.3d 1201,1208, “[t]he trial court’s judgment determining the existence, validity
5 and scope of a compromise agreement depends on a finding of the parties’ intent,
which is an inherently factual finding.” (citations omitted).
Assignment of Error: The trial court erred in finding that the form of mortgage submitted by Richard was the conventional mortgage contemplated by the Settlement Agreement.
Arnold argues that the Settlement Agreement did not contemplate that he
sign such an onerous mortgage that materially affected his legal rights.2 As such,
Arnold argues that there was no meeting of the minds as to the form of mortgage
contemplated by the Settlement Agreement, and the trial court erred in granting
Richard’s Motion to Enforce the Settlement Agreement.
Richard counters that the Settlement Agreement is unambiguous and that it
contemplated a standard conventional mortgage. He maintains that the provisions
contained in the mortgage submitted to Arnold were not arbitrarily chosen by his
attorneys. Rather, he asserts that they are provisions contained in a traditional
form mortgage recommended for use in Louisiana real estate practice.
2 Specifically, Arnold takes issue with the fact that the mortgage sought to:
1. have Arnold waive demand, notice and default, in addition to other securities provided by Louisiana law; 2. have Richard named as payee on any insurance proceeds paid out on the properties; 3. have Arnold be liable for the “note, in principal and interest, together with all attorney’s fees, premiums of insurance, taxes, assessments, municipal charges, delinquency charges, expenses and costs and sum secured by this act” in case of default; 4. have the right to inspection of properties which are currently being leased to individuals as residential homes; 5. allow Richard, at his option, “to take such action as necessary to protect Mortgagee’s interest…” with a right to reimbursement of sums paid in furtherance of same; 6. waive Louisiana procedural law regarding demand, presentment, seizure, and exemptions; and 7. appoint a “keeper” over MKC’s two residential properties whom would have “full powers of administration” with a right to compensation for administration of the properties, which already have individuals living in them. 6 It is well established in our jurisprudence that a compromise instrument
constitutes the law between the parties and must be interpreted in accordance with
the intent of the parties. Ortego v. State, Dept. of Transp. & Dev., 96-1322, p. 6
(La. 2/25/97), 689 So.2d 1358, 1363. The compromise instrument is governed by
the same general rules of construction that are applicable to contracts. Id.
The general rule of construction is provided by La. C.C. art. 2046, which
states that “[w]hen the words of a contract are clear and explicit and lead to no
absurd consequences, no further interpretation may be made in search of the
parties’ intent.” Furthermore, “[t]he words of a contract must be given their
generally prevailing meaning.” La. C.C. art. 2047. “Words susceptible of
different meanings must be interpreted as having the meaning that conforms to the
object of the contract.” La. C.C. art. 2048.
Applying these rules of construction to the case before us, we find no error
in the trial court’s ruling. Arnold has acknowledged that the Settlement Agreement
provided for a conventional mortgage. The term “conventional mortgage” is clear
and unambiguous.3 In this case, the parties evidently contemplated the execution
of an ordinary mortgage (not a mortgage to secure a future debt or a collateral
mortgage). The plain language of the Settlement Agreement provided that the note
3 As recognized by the Louisiana Supreme Court in Diamond Services Corp. v. Benoit, 2000- 0469, p. 6 (La. 2/21/01), 780 So.2d 367, 371, [a] mortgage is an accessory right which is granted to the creditor over the property of another as security for the debt. La.Civ.Code arts. 3278, 3284. Mortgages are of three types: conventional, legal and judicial. La. Civ.Code art. 3286. Within the area of conventional mortgages, three different forms of mortgages are recognized by the Louisiana statutes and jurisprudence: an “ordinary mortgage” (La. Civ.Code arts. 3278, 3290); a mortgage to secure future advances (La. Civ.Code arts. 3292, 3293); and a collateral mortgage.
7 in favor of Richard’s Trust would be secured by two first mortgages on two of
Arnold’s properties valued at $500,000.00 or more. As properly recognized by the
trial court, the mortgage submitted by Richard included the standard safeguards
generally afforded a creditor. In sum, we conclude that there is no evidence in the
record to support Arnold’s argument that the Settlement Agreement did not
contemplate such a standard conventional mortgage.
DECREE
For the foregoing reasons, we cannot say that the trial court’s granting of the
Motion to Enforce Settlement Agreement was manifestly erroneous or clearly
wrong. Accordingly, we affirm.