Zukerman v. Montgomery
| Decision Date | 25 April 2011 |
| Docket Number | No. 49A02–1006–CC–803.,49A02–1006–CC–803. |
| Citation | 945 N.E.2d 813 |
| Parties | Allan B. ZUKERMAN, Harry Davis, MZD Real Estate 1, LLC, and Montgomery, Zukerman, Davis, Inc., Appellants,v.Robert L. MONTGOMERY and Dolores Montgomery, as Assignee of Robert L. Montgomery, Appellees. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Ronald J. Waicukauski, Carol Nemeth Joven, Price Waicukauski & Riley, LLC, Indianapolis, IN, Attorneys for Appellants.
David L. Byers, Holwager, Byers and Caughey, Beech Grove, IN, Attorney for Appellees.
Allan B. Zukerman (“Zukerman”), Harry Davis (“Davis”), MZD Real Estate 1, LLC (“MZD Real Estate”), and Montgomery, Zukerman, Davis, Inc. (“MZD,” and together with Zukerman, Davis, and MZD Real Estate, the “Zukerman Parties”) appeal the trial court's order granting motions to enforce a mediated settlement agreement between Zukerman, Davis, Robert Montgomery (“Robert”), and Dolores Montgomery (“Dolores,” and Robert and Dolores together, the “Montgomerys”). The Zukerman Parties raise two issues, which we revise and restate as whether the court erred in granting the motions to enforce the mediated settlement agreement. We reverse and remand.
The relevant facts follow. In December 2006, the Montgomerys filed a complaint against MZD under cause number 49D11–070l–CC–447 (“Cause No. 447”), which is the cause number from which this appeal arises, alleging that, under a promissory note in favor of Robert which had been assigned to Dolores and was past due, MZD owed the Montgomerys $534,803 together with interest, attorney fees, and costs.1 MZD filed an answer, motion to dismiss, and counterclaim, in which it alleged that Robert owed it approximately $96,909.85 in connection with a condominium in Florida which Robert purchased from MZD.
In June 2007, Robert filed a complaint under cause number 49D01–0706–CC–24538 (“Cause No. 538”) against MZD Real Estate alleging breach of and default under a land contract, which stated that MZD Real Estate purchased real estate commonly known as 22 E. 37th Street, Indianapolis, Indiana for a purchase price of $89,200 and that he is entitled to strict foreclosure, an award of damages, and an award of attorney fees.2
In July 2007, Zukerman filed a complaint under cause number 38D11–0707–PL–30564 (“Cause No. 564”) 3 against EcoBuilders, LLC (“EcoBuilders”) seeking $12,720 in unpaid rent pursuant to a lease for real estate located at 1934 N. Park Avenue, Indianapolis, Indiana.4 EcoBuilders filed an answer and counterclaim against Zukerman alleging breach of fiduciary duty, that Zukerman improperly resigned from EcoBuilders and refused to make contributions and payments due and owing to EcoBuilders, and that EcoBuilders is entitled to an accounting from Zukerman of the proceeds taken from EcoBuilders.
In November 2007, under cause number 49C01–0711–CC–50106 (“Cause No. 106”), Fifth Third Bank, Indiana (“Fifth Third”) filed a complaint against MZD Real Estate, Robert, Zukerman, Irwin Union Bank and Trust Company (“Irwin Union”), and Wisconsin Management Company, Inc. (“Wisconsin Management”) which, as amended, alleged that MZD Real Estate defaulted on two promissory notes under which the aggregate principal sum due and payable was approximately $559,790.08, that MZD Real Estate executed mortgages, security agreements, and an assignment of leases, rents and profits in favor of Fifth Third on real estate commonly known as 3715 North Meridian Street, Indianapolis, Indiana, to secure payment of all indebtedness under the notes, and that Robert and Zukerman executed guaranties with respect to one or both of the notes. 5 On June 19, 2008, Robert filed a motion to substitute himself as plaintiff and real party in interest, and the court granted the motion on June 23, 2008.6
In August 2007, Zukerman and Davis filed a demand for arbitration against Robert with the American Arbitration Association under a partnership agreement dated July 7, 1982, which provided the parties would seek arbitration in the event of a dispute, asserting a claim in the amount of $1,600,000. The demand related to a loan to Robert from 1800 Associates,7 which owned real estate located at 1800 N. Meridian St., Indianapolis, Indiana.
On November 4, 2008, a mediation hearing was conducted, at which the Montgomerys, Davis, and Zukerman were present. The Montgomerys, Zukerman, and Davis entered into a written agreement titled Full and Final Settlement of Arbitration and All Other Pending Matters (the “Settlement Agreement”). 8
On June 12, 2009, under Cause No. 538 and Cause No. 106, Robert filed motions to enforce the Settlement Agreement. Also on that date, under Cause No. 564, EcoBuilders filed a motion to enforce the Settlement Agreement. On August 10, 2009, under Cause No. 447, the Montgomerys filed a motion to enforce the Settlement Agreement.
On August 13, 2009, under Cause No. 538 and Cause No. 106, Robert filed motions citing Trial Rule 42(D) 9 requesting the court to consolidate hearings on the motions to enforce the Settlement Agreement under Cause No. 447, and the court granted the motions. On August 25, 2009, under Cause No. 564, EcoBuilders filed a motion requesting the court to consolidate hearings on the motions to enforce under Cause No. 447, and the court granted the motion.
On January 5, 2010, following the consolidation of the various cause numbers under Cause No. 447, MZD Real Estate filed a motion for mediation, the court granted the motion on January 28, 2010 and ordered the parties to return to mediation, and the mediation was unsuccessful.
On March 8, 2010, MZD Real Estate and Zukerman filed a joint response to the motions to enforce the Settlement Agreement. In the response, MZD Real Estate and Zukerman argued that the “inherent theme of the [November 4, 2008] mediation was an attempt to reach a global settlement by and between the parties without the transfer of money,” that “[t]he global skeleton Agreement was not the full, complete and sole agreement of the parties,” and that “[r]ather, pursuant to Item No. 4 of the Agreement, 10 further mutual releases were to be drafted and executed by the parties following the conclusion of the mediation.” Appellant's Appendix at 169, 170. MZD Real Estate and Zukerman argued that there were several “issues/problems with enforcement of the skeleton Agreement,” including among other things that “there are other individual and corporate owners who are not parties to this litigation,” that “there exists [sic] multi-million dollar accounts receivable and payables owed by and to the various entities, parties to this action and third-parties, which will be affected by enforcement of this skeleton Agreement, but which accounts receivables and payables are not specifically designated” in the Settlement Agreement, that the Settlement Agreement does not identify “the litigation to which Item Nos. 9 and 4 refer and/or identify the Plaintiffs and Defendants of each pending litigation/suit,” and that “[t]here is no performance timeframe or deadline outlined in the skeleton Agreement for relinquishment of the identified properties, relinquishment of claims, relinquishment of entities, the dismissal of claims or the execution of full and complete mutual releases.” Id. at 173–174.
On March 9, 2010, the court held a hearing on the consolidated motions to enforce the Settlement Agreement, at which Dolores, Zukerman, and Davis testified. On March 16, 2010, the court issued an order granting the Montgomerys' August 10, 2009 motion to enforce mediated settlement agreement and instructed the parties to submit a proposed order to the court.11 On April 19, 2010, MZD Real Estate filed a motion for attorney conference.
On April 21, 2010, the court approved the proposed order and judgment submitted by the Montgomerys.12 On April 29, the court denied the motion for attorney conference. On May 21, 2010, MZD, MZD Real Estate, and Zukerman filed a motion to correct error, which the court denied.
The issue is whether the court erred in granting the motion to enforce the Settlement Agreement and approving the proposed order and judgment submitted by the Montgomerys. Where a trial court enters findings of fact and conclusions of law, first we determine whether the evidence supports the findings, and second we determine whether the findings support the judgment. In re Guardianship of Phillips, 926 N.E.2d 1103, 1106–1107 (Ind.Ct.App.2010).
The specific findings control only as to the issues they cover, and a general judgment standard applies to issues upon which the trial court made no findings. Id.; Rea v. Shroyer, 797 N.E.2d 1178, 1181 (Ind.Ct.App.2003). When making this determination, we neither reweigh the evidence nor assess the credibility of the witnesses. Ballew v. Town of Clarksville, 683 N.E.2d 636, 639 (Ind.Ct.App.1997), trans. denied. We review questions of law de novo and owe no deference to the trial court's legal conclusions. M.K. Plastics Corp. v. Rossi, 838 N.E.2d 1068, 1075 (Ind.Ct.App.2005); Shriner v. Sheehan, 773 N.E.2d 833, 841 (Ind.Ct.App.2002), trans. denied.
The Zukerman Parties argue that the court did not have jurisdiction over Davis and other persons or entities who are not parties to the litigation, the court erred in enforcing the Settlement Agreement because its terms were not reasonably definite, the court did not have authority to enforce a Settlement Agreement that arose out of a dispute in arbitration, and the court erred in entering judgment in cases that were consolidated only for pre-trial purposes. The Zukerman Parties argue that the Settlement Agreement “does not specify who is to pay for any such outstanding obligations, nor does it state the amount of any such obligations or even which properties had any outstanding obligations,” and that “[i]f it is more than one person or entity who is liable, it does not state in what proportions each would be liable.” Appellant's Brief at...
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