Elder v. Elder & Elder Enterprises, Ltd., 2006-CA-0703.

• Court: Court of Appeal of Louisiana (US)
• Writing for the Court: Jones
• Citation: 948 So.2d 348
• Parties: Beulah McLean ELDER, et al. v. ELDER & ELDER ENTERPRISES, LTD., et al.
• Docket Number: No. 2006-CA-0703.,2006-CA-0703.
• Decision Date: 11 January 2007

948 So.2d 348 Beulah McLean ELDER, et al.
v.
ELDER & ELDER ENTERPRISES, LTD., et al. No. 2006-CA-0703. Court of Appeal of Louisiana, Fourth Circuit. January 11, 2007. Rehearing Denied February 15, 2007.

[948 So.2d 349]

Kenneth O. Privat, Law Office of Kenneth O. Privat, Homer Ed Barousse, Jr., Crowley, LA, for Plaintiff/Appellant.

Ashley L. Belleau, Pierre V. Miller II, Patrick, Miller, Burnside & Belleau, L.L.C., New Orleans, LA, for Defendant/Appellee.

(Court composed of Judge CHARLES R. JONES, Judge TERRI F. LOVE, and Judge ROLAND L. BELSOME).

JONES, Judge.

The Appellant, Mrs. Beulah Elder (hereinafter "Mrs. Elder"), seeks review of a district court judgment granting the Motion to Enforce Settlement and Execution of Settlement Documents of the Appellees, Elder & Elder Enterprises and S. Thomas Elder. We affirm the decision of the district court.

Statement of Facts

James H. Elder, Jr. and his older brother, S. Thomas Elder formed Elder & Elder Enterprises, Ltd., d/b/a Triple E to collectively manage property they inherited from their parents. Following the death of James H. Elder, Jr., Mrs. Beulah Elder—the widow of James H. Elder, Jr. and the Testamentary Executrix of the Succession of James H. Elder, Jr.—sued Elder & Elder Enterprises, Elder L.L.C., and S. Thomas Elder, the Appellees, on September 13, 2004. The lawsuit alleged that the Appellees committed corporate misdeeds, namely the mismanagement of the assets of the Elder & Elder Enterprises and Elder, LLC.¹

During the course of the on-going litigation, the Appellant, through one of her attorneys of record, broached the topic of

948 So.2d 350

settlement via correspondence with Elder & Elder Enterprises and S. Thomas Elder (hereinafter collectively referred to as "EEE").² Further settlement discussions ensued until EEE provided Mrs. Elder with its final counter-offer in a letter dated July 28, 2005. Counsel for Mrs. Elder replied to EEE on August 1, 2005, advising that Mrs. Elder accepted the counteroffer proposed in the July 28, 2005 letter.³

Settlement documents were forwarded to Mrs. Elder from EEE on August 22, 2005. Hurricane Katrina and its aftermath struck the greater New Orleans area soon thereafter. The parties did not communicate again until September 29, 2005, at which time EEE's counsel followed up with Mrs. Elder's counsel. It was at that time that EEE was informed that Mrs. Elder no longer desired to proceed with the settlement.

On November 23, 2005, EEE filed a Motion to Enforce Settlement against Mrs. Elder, who in turn filed a Dilatory Exception of Unauthorized Use of Summary Proceedings. A hearing was held on both the motion and the exception on February 17, 2006. The district court issued a Judgment on March 28, 2006, granting EEE's Motion to Enforce Settlement and overruling Mrs. Elder's Exception of Unauthorized Use of Summary Proceedings. The district court determined that the requisites of a compromise were met as the correspondence exchanged between the parties showed that all parties acquiesced to the agreement.⁴ Mrs. Elder filed a timely appeal from the district court judgment on April 26, 2006.

Issues/Assignments of Error

Mrs. Elder avers that the district court committed reversible error in finding that the correspondence exchanged between the appellant and appellees created a binding settlement over immovable property where appellant/client did not authorize her counsel in writing to accept a settlement.

Law and Discussion

Louisiana Civil Code article 3071 defines a compromise as follows:

An agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaining, balanced by the danger of losing.

This contract must be either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding ...

A compromise is valid if there is a meeting of the minds of the parties as to exactly what they intended when the compromise was reached. Walk Haydel & Associates, Inc. v. Coastal Power Production Co., 1998-0193, p. 3 (La.App. 4th Cir.9/30/98), 720 So.2d 372, 373 (citing Pat O'Brien's Bar, Inc. v. Franco's Cocktail Prods., Inc., 615 So.2d 429 (La.App. 4 Cir. 1993), writ denied, 617 So.2d 909 (La. 1993)). Indeed, a compromise is a contract. Stern v. Williams, 365 So.2d 1128

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(La.App. 4th Cir.1978), writ denied, 368 So.2d 143 (La.1979).

Contracts are formed by the consent of the parties established through offer and acceptance. La. Civ.Code art. 1927. Thus, "before a district court can find the existence of a valid written compromise agreement, it must find an offer and an acceptance." McRae v. Ellis, 93-1579, (La.App. 4 Cir. 2/11/94), 632 So.2d 841, 843 (citing Felder v. Georgia Pacific Corp., 405 So.2d 521, 523-524 (La.1981)).

The law requires the compromised settlement to be reduced to writing; however, "this Court has said `there is no sacrosanct form which must be followed' and `it is not necessary that everything...