Gewalt v. Gewalt, 031519 CAAPP3, C077972

Docket Nº:C077972
Opinion Judge:MAURO, Acting P. J.
Party Name:JOHN H. GEWALT, Individually and as Trustee, etc., Plaintiff, Cross-defendant and Appellant, v. VICTORIA M. GEWALT, as Trustee, etc., et al., Defendants, Cross-complainants and Respondents.
Judge Panel:We concur: HOCH, J., RENNER, J.
Case Date:March 15, 2019
Court:California Court of Appeals

JOHN H. GEWALT, Individually and as Trustee, etc., Plaintiff, Cross-defendant and Appellant,


VICTORIA M. GEWALT, as Trustee, etc., et al., Defendants, Cross-complainants and Respondents.


California Court of Appeals, Third District, Placer

March 15, 2019


Super. Ct. No. SCV0028016

MAURO, Acting P. J.

The Gewalt family owned substantial real property in Louisiana. When disputes arose regarding management of the property and related assets, John Gewalt and another family member sued for breach of fiduciary duty and fraud, among other things. The named defendants filed a cross-complaint. After years of litigation the parties settled by signing a memorandum of agreement, specifying that the agreement was enforceable under Code of Civil Procedure section 664.6, [1] which provides a summary procedure for enforcement of settlement agreements. The trial court granted defendants' section 664.6 motion and entered judgment in favor of defendants.

Representing himself on appeal, John now contends the trial court erred in entering judgment because (1) the agreement was not intended to be a final settlement, (2) paragraph 2.4 of the agreement cannot be specifically enforced, (3) paragraph 2.5 of the agreement is not sufficiently certain, (4) defendants did not engage in the dispute resolution process required by the agreement, and (5) John rescinded the agreement because his consent was given by mistake.

Finding no error, we will affirm the judgment.


Brothers Charles and John Gewalt formed CD&G Limited Partnership (CD&G), Houlton Investment Company (Houlton), and LSP Minerals to hold and manage real property and related assets located in Louisiana. We will refer to members of the Gewalt family by their first names for clarity. InterTeam, Inc. (InterTeam) was one of the partners of Houlton. After Charles died, disputes arose about the management of the properties and related assets. The specific details of the various business arrangements and disputes are not relevant to the contentions on appeal. It is sufficient to explain that John, individually and as trustee of the Carl & Ruth Gewalt Grandchildren's Trust (Grandchildren's Trust), and his daughter Colby, a beneficiary of the Grandchildren's Trust, sued Charles's estate, Victoria (Charles's widow), individually and as trustee of the Charles and Victoria Gewalt Revocable Trust (CVG Trust), and Gre/Vin/Ken Limited (GVK Limited), an entity formed by Charles, for breach of fiduciary duty, breach of contract, fraud, aiding and abetting breach of fiduciary duty, restitution, and accounting. Defendants cross-complained against John and Colby for breach of contract, accounting, trespass, conversion, breach of fiduciary duty, indemnity and intentional infliction of emotional distress.

The parties settled the matter at mediation with a private mediator, the Honorable John K. Letton (ret.), and signed a memorandum of agreement. The agreement was between John, Colby, defendants, LSP Minerals, Vincent Panigazzi (Victoria's son), and John's wife Jeanne, with the following signatures on the agreement: (1) John; (2) Jeanne; (3) Colby (by her attorney-in-fact); (4) GVK Limited (by its managing member, Victoria); (5) the administrator of Charles's estate; (6) Victoria; (7) Panigazzi (by his attorney-in-fact); and (8) LSP Minerals (by its general partners, John and Victoria).

The parties to the agreement agreed to settle all disputes and to release all claims between them arising out of the facts alleged in the complaint and cross-complaint on the terms and conditions set forth in the agreement. The agreement included provisions relating to mineral rights, the identification of all remaining properties held in Louisiana, appraisal and partition of jointly owned properties, and dissolution of CD&G and Houlton, along with a Civil Code section 1542 waiver. The litigants agreed to file notices of conditional settlement of the complaint and cross-complaint indicating they would execute a formal settlement agreement within 20 days, and a dismissal with prejudice of the entire action after the execution of a formal settlement agreement. Victoria agreed to ask the sheriff of Tangipahoa County in Louisiana to dismiss a criminal matter against John and to take all steps reasonably necessary to effectuate the dismissal of those charges.

The parties further agreed the agreement was binding and could be enforced pursuant to section 664.6, even though the agreement would be more thoroughly documented in a formal settlement agreement.

Following the execution of the agreement, the parties filed notices of a conditional settlement. Defendants timely sent to John's counsel their list of remaining properties, but John did not provide a property list by the stipulated deadline and the parties did not prepare a more formal settlement agreement. Defendants informed John's counsel they did not require any change to the agreement and they would file a section 664.6 motion. In response, John's attorney sent an untimely list of properties but said he did not know what information the list depicted. Defendants' counsel objected that John's list was not of currently owned properties, but defendants continued efforts to identify current mineral rights leases and a potential mineral rights agent.

Defendants also proposed potential appraisers. After the time indicated in the agreement for the execution of a more formal settlement agreement had passed, defendants asked John if he wanted any modifications to the agreement and if he objected to defendants' property list. John did not propose any addition to the agreement and he did not respond to defendants' proposed appraisers. Defendants' counsel informed John's counsel that, having received no response about defendants' proposed appraisers, defendants selected Joseph Mier & Associates as the appraiser. There was no response to the e-mail from defendants' counsel.

Defendants then filed a section 664.6 motion to enforce the agreement. Defendants and Colby thereafter dismissed the complaint and cross-complaint between them with prejudice, but John opposed defendants' section 664.6 motion. He asserted that Victoria misrepresented that she was authorized to do the following: sign the agreement on behalf of Charles's estate, CD&G, Houlton and LSP Minerals; dissolve CD&G and Houlton; and act on behalf of GVK Limited when that entity was not in good standing and had been converted to a limited liability...

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