Succession of Margery Alaynick Kirschman .

SUCCESSION OF MARGERY * NO. 2019-CA-1101
ALAYNICK KIRSCHMAN
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COURT OF APPEAL
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. FOURTH CIRCUIT
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STATE OF LOUISIANA
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APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2016-07544, DIVISION “C”
Honorable Sidney H. Cates, Judge
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JAMES F. MCKAY III
CHIEF JUDGE
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(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
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(“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

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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.

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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

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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.
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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

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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.

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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.
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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.

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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.

AFFIRMED

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