Nola Title Company, L.L.C. v. Archon Information Systems, LLC D/B/A Civicsource, Civicsource Holdings, LLC, Civicsource Title, LLC, Mississippi Guaranty Company, Bryan Barrios, Michael Kirschman and Stephen Morel

NOLA TITLE COMPANY, * NO. 2022-CA-0697
L.L.C.
*
VERSUS COURT OF APPEAL
*
ARCHON INFORMATION FOURTH CIRCUIT
SYSTEMS, LLC D/B/A *
CIVICSOURCE, STATE OF LOUISIANA
CIVICSOURCE HOLDINGS, *******
LLC, CIVICSOURCE TITLE,
LLC, MISSISSIPPI
GUARANTY COMPANY,
BRYAN BARRIOS, MICHAEL
KIRSCHMAN AND STEPHEN
MOREL

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2016-07939, DIVISION “L”
Honorable Kern A. Reese, Judge
******
Judge Rosemary Ledet
******
(Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge
Nakisha Ervin-Knott)

Randall Alan Smith
J. Geoffrey Ormsby
Dylan T. Leach
SMITH & FAWER, L.L.C.
201 St. Charles Avenue, Suite 3702
New Orleans, LA 70170

COUNSEL FOR PLAINTIFFS/APPELLEES

James M. Garner
Peter L. Hilbert, Jr.
Joshua Simon Force
David Freedman
SHER GARNER CAHILL RICHTER KLEIN & HILBERT, LLC
909 Poydras Street, Suite 2800
New Orleans, LA 70112

COUNSEL FOR DEFENDANT/APPELLANT

APPEAL CONVERTED TO APPLICATION FOR SUPERVISORY
WRIT; WRIT GRANTED; RELIEF DENIED
April 13, 2023

RML
This is a commercial litigation case. Although this case has been pending
SCJ
since 2016 and was consolidated with a case filed in 2017, the designated record of
NEK
this appeal starts with a motion to enforce compromise (“Motion to Enforce”) filed

on June 16, 2022. The Motion to Enforce was filed by the plaintiffs—NOLA Title

Company, LLC (“NOLA”), and alternatively, Frederick E. Yorsch (“Mr. Yorsch”),

derivatively as member and manager of NOLA (collectively “NOLA Title”).1

From the trial court’s August 1, 2022 judgment granting the Motion to Enforce, the

defendant—Archon Information Systems, L.L.C. (“Archon”)—appeals. For the

reasons that follow, we convert Archon’s appeal to a supervisory writ, grant the

writ, but deny relief.

FACTUAL AND PROCEDURAL BACKGROUND

In the underlying consolidated cases, the claims asserted by the parties

against each other relate to disputes arising out of the parties’ previous contractual

1 The record on appeal does not contain a copy of the petitions filed in the underlying

consolidated suits. Based on the consolidated matter caption, the parties to the suits are as
follows. The 2016 suit was filed by NOLA and derivative plaintiff, Mr. Yorsch, against multiple
defendants including Archon and Stephen Morel. The 2017 suit was filed by Archon against
NOLA Title. For ease of discussion, we refer the parties in their capacities in the 2016 suit.

1

relationship. During discovery, Archon learned that Mr. Yorsch, a member of

NOLA Title, had secretly recorded numerous pre-litigation conversations with

Archon’s executives. In a discovery response,2 Mr. Yorsch produced over forty

hours of secret audio recordings involving Archon’s executives (the

“Recordings”). According to Bryan Barrios, Archon’s chief executive officer

(“CEO”), the Recordings contained snippets of content of a sensitive nature that

might implicate the professional and reputational interests of Archon and its

executives. It is undisputed that the content of the Recordings is unrelated to the

underlying suit. The Recordings, however, are the focus of the instant dispute over

the validity and enforceability of the purported compromise.

In May 2021, Archon retained the Bezou Law Firm to represent it in this

case. Jacques Bezou was lead counsel; Stacy Palowsky, another attorney at the

Bezou firm, handled everything leading up to trial preparation. Ten months after

the Bezou firm was retained, this case was scheduled for a three-day jury trial.

Trial was to commence on Monday, March 21, 2022.

On the Friday before the scheduled trial, another attorney from the Bezou

Firm, Payton Lachney, went to Civil District Court to test playing trial exhibits on

courtroom equipment. While Mr. Lachney was in the courtroom meeting with the

trial court’s information technology (“IT”) staff and testing the courtroom

equipment, an individual, who identified himself to Mr. Lachney as a member of

the NOLA Title litigation team, was also present in the courtroom performing the

same task. Mr. Lachney spotted—either on the courtroom screens or on the other

2 According to Archon, the trial court, in November 2018, ordered Mr. Yorsch to “produce

complete and full copies of all video and/or audio recordings capturing, recording, or depicting
conversations or interactions between the Parties to this litigation.” In response, Mr. Yorsch
produced the Recordings.

2

individual’s computer screen, or both—an open audio recording regarding Mr.

Barrios. According to Mr. Lachney, the audio recording confirmed to him that

NOLA Title intended to play an irrelevant, but prejudicial, audio recording at trial.

This spotting, which Mr. Bezou reported by e-mail to Mr. Barrios, spurred

settlement negotiations between the parties.

Over the weekend before trial, the parties’ principals—Archon’s CEO, Mr.

Barrios, and NOLA Title’s member, Mr. Yorsch—engaged in settlement

negotiations. Text messages and a phone conversation between the principals

culminated in an oral, telephonic agreement to settle the case. The text messages

between them did not mention the Recordings. At 10:30 a.m. that Sunday, Mr.

Barrios sent an e-mail to Ms. Palowsky stating that Mr. Yorsh was “calling Geoff

[Ormsby, NOLA Title’s counsel,] with the instruction to settle for $375[,000].”

Around noon that Sunday, Mr. Ormsby notified the trial court of the parties’

agreement to settle the case. Mr. Ormsby did so in an e-mail to the trial judge’s law

clerk, which stated that “[t]he parties have reached a settlement, which should be

finalized this afternoon.” In the e-mail, Mr. Ormsby also requested that “the court

not take Monday’s trial off the docket until the agreement is reduced to writing

later today.” Ms. Palowsky forwarded Mr. Ormsby’s e-mail to Mr. Barrios. Mid-

afternoon that Sunday, Mr. Barrios e-mailed Ms. Palowsky inquiring about the

draft of a proposed written settlement agreement.

Counsel for the parties exchanged e-mails during the day on Sunday

regarding what they planned to put on the record on Monday morning regarding

the settlement.3 Later that Sunday evening, around 6:00 p.m., Mr. Ormsby e-mailed

3 At 2:43 p.m. on Sunday, Ms. Palowsky e-mailed Mr. Ormsby, stating “we definitely need to

know what you want on the record, so let us know.” At 2:59 p.m. on Sunday, Mr. Ormsby

3

Ms. Palowsky a draft of an agreement, captioned “Settlement and Release

Agreement.” Thirty minutes later, Ms. Palowsky e-mailed Mr. Ormsby stating that

she could not “see an agreement on a full release agreement by the morning” and

that she “thought we would get basic terms down in writing and on the record in

the morning.” She further stated that she was going to review the draft now and

forward it to Mr. Barrios. Contemporaneously, Ms. Palowsky e-mailed a copy of

the draft to both Mr. Barrios and Archon’s Chief Operating Officer (“COO”), Dan

Rebeor.

At 6:39 p.m. that Sunday, Mr. Ormsby e-mailed Ms. Palowsky that the

“[d]eal is amount and payment and effective date—we can work on other

language—we can take out [Mr.] [B]arrios [and] [Mr.] [K]irschman but trying to

end everything.” About an hour later, Ms. Palowsky again e-mailed Mr. Barrios

and Mr. Rebeor and informed them that “we don’t have to have the release signed

in the morning, so we have time to deal with [the release]” and that “[w]e just need

to put on the record the amount of the two payments, to whom the two payments

will be made, and when.” In essence, Ms. Palowsky informed them that the

payment terms were what was to be put on the record in the morning.

About thirty minutes later, Mr. Barrios e-mailed Ms. Palowsky the following

bullet list of his comments regarding the draft, which were as follows:

• Barrios and Kirschman individually do not need to appear or be included in
a settlement of a case they’ve already been dismissed from.

replied that he would let Archon know what was going to be put on the record, but he was
“[r]eally thinking this out.” At 3:03 p.m. on Sunday, Ms. Palowsky e-mailed Mr. Ormsby asking
if it [w]ould be better to just have the court take it off the docket and tell them we’ll submit
something later to give you time to figure it out?” At 4:25 p.m. on Sunday, Ms. Palowsky e-
mailed Mr. Ormsby that they would be at Court in the morning and repeated the request that Mr.
Ormsby “please send what you want to put on the record this evening.”

4

• Morel’s dismissal also (magically) dismissed him from the WFG suit. That
should be included.

• You’re welcome to keep May 22, 2022 as a date for one payment, but not
both. This isn’t an insurance claim.

• There will be a paragraph addressing the recordings.

Fifteen minutes later, Ms. Palowsky e-mailed Mr. Barrios and addressed

each of his comments. She stated that “we can take you and [Mr.] Kirschman out”;

that she would add Morel’s dismissal; that she would “tell [Mr. Ormsby] there will

only be one payment”; and “[o]k on recordings.” Five minutes later, Ms. Palowsky

e-mailed Mr. Ormsby that “[w]e’ll definitely have to include some other things in

the release that [Mr. Barrios] wants.” But, Ms. Palowsky did not mention to Mr.

Ormsby that one of the things Mr. Barrios wanted included in the written

agreement was a paragraph addressing the Recordings.

Later that Sunday night, Ms. Palowsky and Mr. Ormsby exchanged e-mails

regarding the payment terms—the number of payments (one versus two) and the

payments schedule (timing). According to Ms. Palowsky, she received a phone call

from Mr. Barrios that evening. During that phone call, Mr. Barrios screamed at Ms.

Palowsky for misreading his instruction regarding the payment terms. Ms.

Palowsky then sent an e-mail to Mr. Ormsby, stating: “I apologize, I misread an e-

mail from Bryan [Barrios]. He will write two checks to total the agreed upon

settlement amount, but the second one won’t be until August 22.”

On Monday morning (March 21, 2022)—the day the trial was scheduled to

commence, counsel for Archon—Mr. Bezou and Ms. Palowsky—and for NOLA

Title—Mr. Ormsby—appeared before the trial court for a conference. A member of

NOLA Title—Mr. Yorsch—was also present. No executive or officer of Archon

was present. The following colloquy was put on the record:

5

MR. ORMSBY:

Your Honor, again, Geoffrey Ormsby. Subject to, subject to a
more formal agreement, what we’d like to put on the record today is
the fact of the settlement and some other—and other terms. And if I
forget any, Ms. Palowsky, of course, can fill it in.

Archon and the derivative plaintiff, Your Honor, have agreed to
a settlement in the amount of $375,000, paid to the derivative plaintiff
and dismissing NOLA Title as a defendant from the case.

That $375,000 settlement will release all parties from the case.
The payment for that is gonna be split in two, Your Honor. The
payment—The first payment will be due May twenty—I’m sorry.

MS. PALOWSKY:

June 3rd, 90 days.

MR. ORMSBY:

No. I thought the first one to us was 60, and then the other was
90 and 150. That’s what you said. There was no problem with the first
check.

THE COURT:

Hold on. Let them have this off-the-record discussion.

(An off-the-record discussion is held.)

During the off-the-record discussion, Ms. Palowsky called Mr. Rebeor,

Archon’s COO, to get clarification on the settlement terms. Mr. Rebeor patched in

Mr. Barrios, Archon’s CEO, during the call. After the call, counsel for all parties

went back on the record. Thereafter, the following colloquy was put on the record:

MR. ORMSBY:

We’re gonna start over again.

THE COURT:

Ironed out the wrinkles?

MR. ORMSBY:

6

Yes .

THE COURT:

All right. Good enough.

THE COURT:

Anyway, go ahead.

MR. ORMSBY:

Laurie, if we can wipe the slate clean—The parties have agreed.
Your Honor, that Archon will pay to the derivative plaintiff the
amount of $375,000. One-half of that amount will be paid on May 21,
2022, to Smith & Fawer, L.L.C. [NOLA Title’s counsel], for legal
fees and any unpaid costs or expenses incurred on behalf of
prosecuting the derivative lawsuit.

A second check will be tendered to the derivative plaintiff on
August 21, 2022, in the amount of $187,500, which is one-half of the
total settlement amount. The $187,500 will be paid to the derivative
plaintiff, Mr. Yorsch, and NOLA Title Company. So they will both be
on the check.

Mr. Yorsch personally agrees to indemnify Archon from any
claims that may be brought on behalf of NOLA Title, the entity,
and/or the liquidator for that company.

The parties both agree to dismiss any respective claims between
them with prejudice.

Additionally, the derivative plaintiff has resolved any and all
claims against Stephen Morel, defendant Stephen Morel, and those
claims have been settled with consideration given by both parties.

Finally, Archon will agree to dismiss NOLA Title in the lawsuit
from the direct claim brought by Archon.

MR. BEZOU:

May it please the Court, this is Jacques Bezou again. I just want
to say one thing. Stacy [Palowsky] will follow after me. Since the first
check is written to the firm, I would like Mr. Yorsch, who is here, to
accede to that on the record.

7

THE COURT:

I was going to query him on the settlement. No problem, Mr.
Bezou.

Yes, ma’am.

MS. PALOWSKY:

No, I don’t have anything to add. That covers it.

The trial court judge, on the record, questioned Mr. Yorsch as to whether he

agreed with the terms that had been recited. The trial court also clarified that the

terms that had been recited would “constitute a full and final settlement of this

matter” and that “because this is going on the record, this constitutes a settlement

of the matter, and that will resolve it.” Then, the trial court questioned counsel as to

whether they were authorized to enter into this settlement on behalf of their

respective clients. Ms. Palowsky—identifying Archon as her client—answered

affirmatively. The trial court judge closed by stating that he “expected a motion to

dismiss the matter once all closing documents [which he identified as a confected

judgment and release and receipt] have been executed.”

Two weeks later, Archon dismissed the Bazou Law Firm as its counsel and

replaced them with the Sher Garner Firm. Two months later, Mr. Ormsby

forwarded a draft of a receipt and release agreement to the Sher Garner Firm,

indicating that the document “simply memorializes the agreement put on the record

on March 21, 2022.” The Sher Garner Firm refused to sign the draft; instead, the

Sher Garner Firm demanded that multiple other provisions be added.

By e-mail dated May 18, 2022, Mr. Ormsby replied to Sher Garner Firm’s

proposed additions as follows:

8

• [W]e cannot accept any provision regarding the audio recordings, as it
was not part of the settlement. Furthermore, Mr. Yorsch has no idea
who may have the recordings and they were produced in discovery,
and thus he has no way to control the use or dissemination of the tapes
by anyone else but himself and the undersigned. He cannot accept
potential liability for the acts of other[s] not in his control. That said,
Mr. Yorsch sees no reason why he would use, provide, or publish the
recordings, as he does not care to create any future issues with Mr.
Barrios. For these reasons, he will not enter into any agreement in that
regard.

• We will also not agree to an attorney’s fee provision or the
disparagement clause, as those were never agreed to and could only
lead to more litigation between our respective clients.

• Lastly, the two (2) payment dates must remain specific, despite the
first date falling on a Saturday.

• We do agree to Mr. Yorsch’s indemnity obligation as to the liquidator,
as that was indeed part of the settlement read into the record on
March 21, 2022.

As Mr. Ormsby’s e-mail reflects, the Sher Garner Firm requested adding multiple

provisions to the proposed draft, including a non-disclosure provision regarding the

Recordings, a non-disparagement provision, and an attorney’s fees provision.

Given the first payment was delinquent (it was due May 21, 2022) coupled

with the dispute regarding the existence of a compromise, NOLA Title filed the

Motion to Enforce on June 16, 2022. In support of the Motion to Enforce, NOLA

Title attached a copy of the March 21, 2022 transcript. In the Motion to Enforce,

NOLA Title contended that Archon, through the Sher Garner Firm, was seeking to

impose additional terms to the agreed-upon settlement that were never discussed

before or as the settlement was being read into the record.

Opposing the Motion to Enforce, Archon contended that the compromise

was invalid for two reasons: (i) Archon’s former counsel (Ms. Palowsky), although

believing she was authorized to enter the compromise, actually lacked the

9

authority; and (ii) even if former counsel was authorized, the compromise was

invalid because it failed to include a key element of the parties’ agreement—a

provision regarding the Recordings. In support of its opposition, Archon attached

two affidavits. The first affidavit was from Mr. Lachney; in his affidavit, Mr.

Lachney attested that while meeting with the court’s IT staff on the Friday before

the trial, he spotted the audio recording that spurred the settlement negotiations.

The second affidavit was from Mr. Barrios—Archon’s CEO. In his affidavit, Mr.

Barrios attested to the following:

• I did not approve or authorize anybody to agree on behalf of Archon
to a settlement that included only the terms recited on the record on
March 21, 2022

• Archon did not agree and has never agreed to the terms of supposed
settlement that included only the terms recited on the record on
March 21, 2022.

• It has always been a primary purpose of Archon in agreeing to settle
that there would be terms in the settlement agreement addressing [the
Recordings]. The [Recordings] were the entire basis for my
willingness to settle, as there was nothing to prove any of NOLA
Title’s allegations against Archon.4

4 Mr. Barrios additionally attested to the following:

• Before March 21, 2022, I personally instructed that any settlement agreement of
this matter include a paragraph addressing the audio recordings. Archon did not
agree, and would not have agreed, to any settlement agreement that did not
address those audio recordings.

• Within the more-than forty hours of audio recordings secretly made by Mr.
Yorsch, there are snippets of content of a sensitive nature that may implicate
professional and reputational interests. It has always been my understanding that
any final settlement agreement would address Mr. Yorsch’s audio recordings.

• Mr. Yorsch and/or NOLA Title have refused to include in the settlement
agreement any provision relating to those audio recordings. Mr. Yorsch and/or
NOLA Title have also refused to include an anti-disparagement clause. These
facts are particularly problematic considering that Mr. Yorsch has represented that
he is a competitor of Archon.

10

Given the conflict between Mr. Barrios’ attestations denying Archon’s

approval of its former counsel’s authorization to enter the settlement that was

recited into the record and Ms. Palowsky’s statement on the record that she had

such authority, the trial court set an evidentiary hearing to address the authorization

issue. At that hearing, two witnesses testified—Mr. Barrios and Ms. Palowsky.5 At

the close of the hearing, the trial court concluded that the parties’ recitations on the

record on March 22, 2022 constituted a binding settlement agreement and that Ms.

Palowsky was authorized to consent to that settlement on Archon’s behalf. The

trial court, thus, granted the Motion to Enforce. This appeal followed.

APPELLATE JURISDICTION

Regardless whether the parties raise an appellate jurisdiction issue, an

appellate court has a duty to determine whether it has jurisdiction to entertain an

appeal. See S. Envtl. Mgmt. & Specialties, Inc. v. City of New Orleans, 22-0018,

p. 4 (La. App. 4 Cir. 5/11/22), 339 So.3d 1234, 1237. Here, the trial court’s

judgment only grants the Motion to Enforce; the judgment is devoid of any

language dismissing any of the parties or disposing of the entire case. Nor did the

trial court certify the judgment as final for purposes of appeal under La. C.C.P.

art. 1915. The judgment, thus, is “a non-final, interlocutory judgment, which is not

appealable.” Myers v. Diaz, 22-0445, p. 3 (La. App. 1 Cir. 11/4/22), 354 So.3d 78,

81 (citing La. C.C.P. arts. 1915, 2083, and 1841); 800 Iberville St. Ltd. P'ship v. V

Rest. Grp., L.L.C., 16-0799, 16-0483, pp. 5-6 (La. App. 4 Cir. 6/7/17), 221 So.3d

205, 209; Gerhold v. Giles, 11-0992, pp. 8-9 (La. App. 4 Cir. 1/25/12), 83 So.3d

1170, 1175.

5 For ease of discussion, we summarize the two witnesses’ testimony elsewhere in this opinion.

11

The proper procedural vehicle to seek review of an interlocutory judgment is

by filing a supervisory writ. See La. C.C.P. art. 2201.6 Given Archon’s appeal was

timely filed within the delays allowed to file a supervisory writ, 7 we convert

Archon’s appeal to a writ and address Archon’s arguments under our supervisory

jurisdiction.

STANDARD OF REVIEW

This court reviews a trial court’s judgment granting a motion to enforce a

compromise agreement under a manifest error standard. 800 Iberville St. Limited

P’ship, 16-0799, pp. 7-8, 221 So.3d at 210 (citing Howard v. La. Citizens Prop.

Ins. Corp., 10-1302, pp. 2-3 (La. App. 4 Cir. 4/27/11), 65 So.3d 697, 699). As this

court has observed, “[t]he trial court’s judgment determining the existence, validity

and scope of a compromise agreement depends on a finding of the parties’ intent,

which is an inherently factual finding.” Morris, Lee & Bayle, LLC v. Macquet, 14-

1080, p. 14 (La. App. 4 Cir. 3/23/16), 192 So.3d 198, 208. Here, as in civil cases in

general, the trial court’s factual findings are reviewed under a manifest error

standard. Hall v. Folger Coffee Co., 03-1734, p. 9 (La. 4/14/04), 874 So.2d 90, 98.8

With these principles in mind, we address the issue presented by this appeal.

6 La. C.C.P. art. 2201 provides that “[s]upervisory writs may be applied for and granted in

accordance with the constitution and rules of the supreme court and other courts exercising
appellate jurisdiction.”
7 We acknowledge, as Archon points out in its brief, that this court in Coppage v. Transdev

Servs., Inc., 20-0419 (La. App. 4 Cir. 3/19/21), 320 So.3d 1206, writ denied, 21-00549 (La.
6/8/21), 317 So.3d 328, addressed a judgment granting a motion to enforce a settlement on
appeal. This court in Coppage, however, neither mentioned nor addressed the jurisdictional
issue. Archon’s reliance on Coppage is, thus, misplaced.
8 Commenting on that standard, the Louisiana Supreme Court has observed that “[w]here there

are two permissible views of the evidence, the factfinder’s choice between them cannot be
manifestly erroneous or clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).
Emphasizing these principles, the Supreme Court in Menard v. Lafayette Ins. Co., 09-1869, pp.
21-22 (La. 3/16/10), 31 So.3d 996, 1011, remarked:

Rarely do we find a reasonable basis does not exist in cases with opposing views.
We note it is not hard to prove a reasonable basis for a finding, which makes the

12

DISCUSSION

The requirements for a valid and enforceable compromise that are pertinent

here are set forth in the following four Louisiana Civil Code articles:

• La. C.C. art. 3071—“A compromise is a contract whereby the parties,
through concessions made by one or more of them, settle a dispute or
an uncertainty concerning an obligation or other legal relationship.”

• La. C.C. art. 3072—“A compromise shall be made in writing or
recited in open court, in which case the recitation shall be susceptible
of being transcribed from the record of the proceedings.”

• La. C.C. art. 3076—“A compromise settles only those differences that
the parties clearly intended to settle, including the necessary
consequences of what they express.”

• La. C.C. art. 3082—“A compromise may be rescinded for error, fraud,
and other grounds for the annulment of contracts. Nevertheless, a
compromise cannot be rescinded on grounds of error of law or
lesion.”

The jurisprudence has developed the following principles that are pertinent

here:

• “Although attorneys are presumed to have the authority to negotiate a
settlement proposal for their clients, attorneys may not enter into a
binding agreement without their client’s clear and express consent.”
Tran v. Allstate Ins. Co., 01-0675, p. 5 (La. App. 4 Cir. 12/27/01), 806
So.2d 103, 106 (quoting Dammann v. Molero, 97-1944 p. 3 (La. App.
4 Cir. 3/18/98), 709 So.2d 344, 345).9

• “Recital of settlement agreements in open court must make full
disclosure of the terms so that all parties involved are fully appraised
of their rights and obligations.” Abadie v. Metro. Life Ins. Co., 97-932
to 97-940, p. 3 (La. App. 5 Cir. 4/9/98), 712 So.2d 932, 934.

manifest error doctrine so very difficult to breach, and this is precisely the
function of the manifest error review. A reviewing court only has the “cold
record” for its consideration while the trier of fact has the “warm blood” of all the
litigants before it. This is why the trier of fact’s findings are accorded the great
deference inherently embodied in the manifest error doctrine. So once again we
say it should be a rare day finding a manifest error breach when two opposing
views are presented to the trier of fact. (emphasis in original).
9 La. C.C. art. 2997 provides that authority must be given expressly “to [e]nter into a

compromise.”

13

• “A settlement agreement may be binding even if it is subject to later
formalities that do not occur.” Saeed v. Kamboj, CV 17-13427, 2019
WL 3526710, at *4 (E.D. La. June 21, 2019) (internal citation and
quotations omitted).

• “[W]hen a settlement is in writing, even if it does not encompass all of
the issues between the parties, it nonetheless is a legally binding
agreement as to the terms it does encompass.” Id. (citing Walk Haydel
& Assocs., Inc. v. Coastal Power Prod. Co., 98-0193, p. 4 (La. App. 4
Cir. 9/30/98), 720 So.2d 372, 374).

Applying the pertinent codal articles and jurisprudential principles here, the

trial court reached the following conclusions at the end of the evidentiary hearing:

[W]hat was recited to the Court on March 21 of 2022 was a
settlement of the proceedings for the amount of $375,000.

The other terms, a transition in attorneys changed the dynamic.
All the things that were probably going to be resolved were not
resolved and I don’t even know, based upon what I heard today, were
capable of being resolved; i.e., this infamous recording that Mr.
Yorsch may or may not have control of was a bone of contention in
the case.

Very simple process. In my estimation, a deal is a deal. A deal
was made, recited on the record of the court. A representation was
made to the Court that the attorney had authority to go into the
settlement. And the attorney did have the authority to make the
settlement on the amount. I think there was a meeting of the minds on
that.

There was no recitation of the recording in the settlement
agreement. And there’s a little buyer’s remorse at the end because that
wasn’t included, or the terms changed.

What was put on the record, in this Court’s estimation, based on
the law, based on the jurisprudence, based on the testimony of the
witnesses who testified today, again, was a viable settlement.

So for those reasons, the Court grants the Motion to Enforce
Settlement in the amount of $375,[000] as attested to on March 21,
2022.

Although Archon assigns numerous errors,10 we frame the issue presented as

whether the trial court erred in finding that the purported settlement agreement

10 Archon’s assignment of errors are as follows:

14

recited into the record on March 21, 2022 is a valid and an enforceable

compromise.11 Archon contends the trial court so erred. In support, Archon argues

that there was no meeting of the minds—and thus no compromise—for three

reasons:

• The parties contemplated a formal, written settlement agreement
would be confected;

• A material term—the Recordings—was missing from the terms the
parties recited on the record; and

• Archon’s former counsel lacked express authority to enter into a
compromise that included only the terms recited on the record.

We subdivide our analysis into three parts corresponding with these three issues.

Formal, Written Settlement Agreement Not Contemplated

A compromise, by codal definition, is a form of contract. See La. C.C.

art. 3071. The rules of contractual agreement apply to compromise agreements.

I. The District Court erred in granting NOLA Title’s Motion to Enforce Settlement
Agreement and holding that a binding and enforceable settlement agreement
exists between Archon and NOLA Title.

II. The District Court erred in concluding that a meeting of the minds between the
parties existed as to all material terms of settlement.

III. The District Court erred to the extent that it concluded that the parties orally
confected a settlement agreement on March 20, 2022.

IV. The District Court erred in concluding that Archon’s counsel had authority to bind
Archon to a purported settlement that did not include material terms that Archon
had explicitly instructed to be included in the settlement.

V. The District Court erred in concluding that there was an enforceable settlement
agreement based on an incomplete recitation in open court of some (but not all)
settlement terms considering that the recitation was made explicitly subject to a
more formal agreement that the parties ultimately could not execute due to
disagreements over material terms.
11 Although the terms settlement and compromise are often used interchangeably, the legal term

for the type of agreement at issue is a compromise. As this court has observed, “‘[t]he settlement
[to end litigation] reached by the parties in this case is what is known in Louisiana law as a
transaction or compromise.’” Alexius v. Booth, 20-0332, p. 2 (La. App. 4 Cir. 1/13/21), 312
So.3d 1122, 1123, n. 2 (quoting Cochennic v. City of New Orleans Through Mosquito Control
Unit of Health Dep’t of City of New Orleans, 98-0464 (La. App. 4 Cir. 11/10/98), 722 So. 2d
325, 327).

15

Louisiana jurisprudence has recognized that a “so-called preliminary agreement

may be binding, even though it refers to a future written agreement finalizing its

contents.” Newport Ltd. v. Sears, Roebuck & Co., 6 F.3d 1058, 1065 (5th Cir.

1993) (citing Chevron U.S.A., Inc. v. Martin Exploration Co., 447 So.2d 469 (La.

1984)).12 Louisiana jurisprudence also has recognized that “an agreement to agree

is no agreement at all, since either party may avoid it by the mere failure to agree.”

McNeely v. Town of Vidalia, 157 La. 338, 342, 102 So. 422, 423 (1924).

Summarizing Louisiana jurisprudence regarding preliminary agreements and

agreements to agree, a commentator has observed:

It is not uncommon for parties to enter into a preliminary or
interim agreement prior to the execution of a more formal agreement.
In these cases, the issue might arise whether the parties are bound
prior to the execution of the later agreement or, in some cases, if the
later agreement is never executed.

One arguing against the existence of a binding agreement prior
to the execution of the later, more formal or comprehensive agreement
will urge that the first document is nothing more than an “agreement
to agree” and that, without the confection of the second agreement,
there is no binding contract. On the other hand, it may be argued that
the parties are bound by the preliminary or interim agreement,
notwithstanding that a more formal agreement has not been executed.

The courts have held that “an agreement between parties, where
their minds have met upon all essentials, constitutes a contract
between them and binds them at once although they may have agreed
that they would thereafter execute a formal instrument containing the
terms of their present agreement.” . . .

12 In Chevron, the Louisiana Supreme Court observed that using the term preliminary, “by itself,

does not necessarily connote a [tentative] or non-binding agreement. Preliminary, in its most
general usage, implies something which precedes something else.” 447 So.2d at 472. Continuing,
the Supreme Court observed that the use of the word preliminary “does not preclude the
agreement from being final until later agreements are reached, or from being the only agreement
in the event no other agreements are confected.” Id. Moreover, the Supreme Court rejected the
argument that a preliminary agreement that envisioned subsequent agreements was not
enforceable. Based on the language of the document at issue, the Supreme Court found it created
binding commitments—despite that subsequent documents were to be confected—and that it was
not an agreement to agree. Chevron, 447 So.2d at 473.

16

Whether or not the parties intend to be bound if a subsequent
written agreement is not executed is a question of fact.

Patrick S. Ottinger, Principles of Contractual Interpretation, 60 LA. L. REV. 765,

768 (2000) (internal footnotes omitted).

The gist of Archon’s contention is that the settlement agreement recited on

the record was an agreement to agree, not a valid and an enforceable compromise.

Archon contends that Mr. Barrios understood from his phone conversation with

Mr. Yorsch—NOLA Title’s principal—on Sunday morning June 20, 2022 that the

Recordings would be destroyed. Mr. Barrios testified that his understanding of the

settlement that he reached with Mr. Yorsch was that it had three material terms:

(i) payment of $375,000 by Archon to NOLA Title; (ii) destruction by NOLA Title

of the Recordings; and (iii) dismissal of the suit.

According to Archon, the e-mails exchanged on Sunday following the

telephone call between Mr. Barrios and Mr. Yorsch establish that the parties

understood there would be a formal, written agreement. Archon contends the e-

mails reflect that the parties understood the terms of such an agreement would be

worked out after the March 21, 2022 court conference. Indeed, Archon points out

that shortly after his telephone call with Mr. Yorsch, Mr. Barrios e-mailed Ms.

Palowsky with instructions that “[t]here will be a paragraph addressing the

[R]ecordings” in the written settlement agreement.

Consistent with the e-mails, Archon emphasizes that, on March 21, 2022,

NOLA Title’s counsel, Mr. Ormsby, qualified the recital of the settlement on the

record. Mr. Ormsby stated that what the parties were putting on the record was

merely “the fact of settlement” and “other terms” that were explicitly made

“subject to a more formal agreement.” Archon also emphasizes that the parties

17

never were able to confect a more formal, written agreement due to their inability

to agree on the material terms.

NOLA Title counters that although its counsel (Mr. Ormsby) initially

qualified the recital of the settlement on the record, this qualification was not

repeated when—after the off-the-record telephone conversation between Ms.

Palowsky and Archon’s two executives (its CEO and COO)—the recitation of the

settlement was restarted anew and completed. Regardless, NOLA Title points out

that the reference to a “more formal agreement” was to the documents

memorializing the deal—a release and closing documents. Indeed, the trial court

judge observed, at the close of the conference, that he “expected a motion to

dismiss the matter once all closing documents have been executed.”

NOLA Title additionally counters that, by the morning of March 21, 2022,

when the parties appeared before the trial court to recite their agreement on the

record, the parties had reached a meeting of the minds. Otherwise, NOLA Title

points out, this case would, and could, have proceeded to a three-day jury trial as

scheduled. Thus, NOLA Title submits that the deal the parties agreed to was the

one that they recited on the record on the cusp of the scheduled jury trial. We

agree.

This scenario presented here is one in which the parties’ contemplated, more

formal, written documents—a release and closing documents—were “just tying up

loose ends and where the failure to agree on them did not affect an otherwise valid

settlement.” Stag v. Stuart H. Smith, LLC, CV 18-3425, 2020 WL 1984336, at *4

(E.D. La. Apr. 27, 2020). Ms. Palowsky’s testimony regarding her understanding

of the terms of the settlement supports that the contemplated written documents in

this case were simply meant to address ancillary issues.

18

Ms. Palowsky testified that the Recordings were an ancillary issue that the

parties would have addressed in a release—not as part of the settlement recited on

the record. But Ms. Palowsky explained that she and her firm were fired before the

release could be finalized. Nonetheless, Ms. Palowsky testified that she was

confident if she had not been fired and she “had done the red lines back and [she]

had said, ‘Freddy’s got—Mr. Yorsch has to destroy the recordings’ it would have

been a nonissue as a part of the release.” Ms. Palowsky equated a provision

regarding the Recordings to a standard release provision, such as a choice-of-law

provision.

Ms. Palowsky further testified that if the parties intended the Recordings to

be a material term, when Mr. Barrios screamed at her on the phone on Sunday

night about her misunderstanding of his e-mail regarding the payment schedule,

Mr. Barrios also would have mentioned her failure to address the Recordings with

Mr. Ormsby. She stressed that Mr. Barrios never had that verbal discussion with

her.13

13 Ms. Palowsky testimony regarding the Recordings was as follows:

“We were told the settlement was 375. Mr. Barrios told us that, 375. All right.
There was nothing said about -- There was nothing said about [the] [R]ecordings
being a term of the settlement. I thought the—The settlement was what was put
on the record. Is the release gonna have other things, like a choice-of-law
provision, you know, all the standard things that make a release go from really
being—it should be one page—being 10 pages? Did I think there was gonna be
other things in the release and what -- If I had not been fired, would I have said,
‘Oh, Geoffrey [Ormsby], we’ve got to put something about the [R]ecordings. You
know, will Freddy [Yorsch] get rid of them? Will he destroy them?’ Yes, would I
have included that? Yes. But I did not think that would upset the settlement,
because we had already discussed a few other things that had been raised about
the release, the draft release that Mr. Ormsby sent. So to me, if the settlement had
been -- If the [R]ecordings had been a main term in the settlement, when Mr.
Barrios called me to scream at me about the payment schedule and my
misunderstanding of his e-mail, that there would be—when I thought he said there
would be one payment—there would be two payments at two different times,
then, to me, he would have also relayed to me then: ‘Hey, in your e-mail to Mr.
Ormsby, where you said there would be one payment, you screwed that up. You

19

A factually similar scenario to the one presented here was addressed in

VACC, Inc. v. Davis, 18-CV-03454-JCS, 2019 WL 1460201 (N.D. Cal. Apr. 2,

2019), aff'd, 823 Fed.Appx. 474 (9th Cir. 2020). There, the parties entered a

purported settlement agreement on the record. Before and after doing so, one of the

parties, VACC, was assured by its then counsel that a representation provision—a

provision that the other party, Davis, had not taken VACC’s proprietary

information—would be included in the settlement agreement. But, the inclusion of

a representation provision was neither mentioned to opposing counsel nor stated on

the record as a term of the settlement. Thereafter, Davis’ counsel e-mailed a draft

settlement agreement to VACC. VACC, no longer represented by counsel, refused

to sign the agreement because it lacked the representation clause. Litigation

ensued. The district court found the settlement enforceable.

On appeal, VACC contended that the settlement recited on the record was an

unenforceable agreement to agree because its terms were only preliminary and that

the parties contemplated a formal, written settlement to finalize the agreement. The

written agreement, VACC contended, would have included the representation

clause. Rejecting these arguments, the appellate court observed that an objective

standard applied to determine whether there was mutual consent—a meeting of the

minds. Applying an objective standard, the appellate court observed:

Even if Bayat subjectively (and reasonably) believed—based on
the advice of counsel—that additional terms could be inserted into the
settlement agreement at a later time, Bayat’s objective words and
actions at the settlement conference demonstrate that a binding
agreement was made at that time. Nothing in Bayat’s outward
manifestations suggests an understanding that the oral settlement
agreement would be contingent on the reduction of the agreement to

also screwed up ‘cause you didn’t tell him there would be a paragraph in the
release about the [R]ecordings.’ He didn’t. There was no verbal discussion ever.”

20

writing. Nor has VACC alleged that Davis or his attorneys knew of
Bayat’s request to add the representation clause in a follow-up written
agreement. Accordingly, no allegation supports VACC’s contention
that the settlement conference was an unenforceable “agreement to
agree.”

VACC, 823 Fed.Appx. at 477. The appellate court further observed that “Davis

anticipated a memorialization of the settlement agreement—not an entirely new

settlement.” VACC, 823 Fed.Appx. at 477, n. 2.

Louisiana jurisprudence, likewise, imposes an objective “meetings of the

minds” standard; “[t]he mere lack of a subjective ‘meeting of the minds’ does not

prevent formation of an enforceable contract.” Haygood v. Haygood, 52,435, p. 4

(La. App. 2 Cir. 1/16/19), 264 So.3d 1226, 1230. Here, Mr. Barrios’ subjective

beliefs—that the Recordings were a material term of the settlement he agreed to

and that there would be a formal, written settlement agreement incorporating that

term—did not prevent the formation of a valid and an enforceable compromise.

We, thus, find no manifest error in the trial court’s finding that the terms recited on

the record were a valid and an enforceable compromise.

Missing Material Term

When, as here, the compromise is placed on the record, the recital must

make full disclosure of the material terms so that all parties involved are fully

appraised of their rights and obligations. Troxclair v. Parish of St. Charles, 450

So.2d 759, 761 (La. App. 5th Cir. 1984). “A compromise is valid if there is a

meeting of the minds between the parties as to exactly what they intended when

the compromise was reached.” Tarver v. Oliver H. Van Horn Co., Inc., 591 So.2d

1366, 1369 (La. App. 4th Cir. 1991).

Archon contends a material term—the Recordings—was missing from the

terms that the parties recited on the record; given this omission, it contends no

21

valid compromise was reached. Archon emphasizes that even the trial court

concluded that “[t]hese tapes [the Recordings] obviously were a substantial issue,

and the Court has now come to ascertain that they should have been part and parcel

of the settlement. They were not.” Archon’s quote of the trial court’s conclusion,

however, is incomplete. The trial court’s next sentence, following the quotation

that Archon cites, states: “[t]hat’s the issue.” Viewed in context, the trial court was

actually posing a question—whether the Recordings were a material term of the

compromise—not making a conclusion that the Recordings were a material term.

Archon next argues that the e-mails exchanged between the parties before

and after the March 21, 2022 conference establish a disagreement between them as

to the material terms and, thus, the lack of a meeting of the minds. In support,

Archon points out that its former counsel, Ms. Palowsky, advised NOLA Title’s

counsel, Mr. Ormsby, that Archon’s CEO, Mr. Barrios, would “definitely have to

include some other things” in the settlement agreement; and Mr. Barrios himself

personally insisted that “[t]here will be a paragraph addressing the [R]ecordings.”

This argument is unpersuasive.

Archon acknowledges that its counsel did not communicate to NOLA Title

that one of the things that Mr. Barrios needed and had instructed to be included in

the settlement agreement was a provision addressing the Recordings. Rather, this

was communicated only in an e-mail exchange between Mr. Barrios and his former

counsel, Ms. Palowsky. Moreover, Mr. Barrios conceded that he never explained

to Ms. Palowsky exactly how he wanted the issue of the Recordings to be

addressed. In response to the question of what he expected, Mr. Barrios replied that

he expected “[f]or [the Recordings] to go away. I mean, they pick their poison,

22

how they make it go away, but make sure they go away and there’s recourse if they

ever were to resurface.”

Mr. Barrios also acknowledged that the Recordings were not mentioned in

the multiple text messages that were exchanged between him and Mr. Yorsch in

negotiating the settlement over the weekend before trial. Indeed, Mr. Barrios

conceded that the only documentary proof of the parties’ intent to include the

Recordings as part of the settlement was the e-mail exchange between him and Ms.

Palowsky. Again, in that e-mail exchange, he instructed Ms. Palowsky to include a

paragraph in the settlement agreement addressing the Recordings; she replied to

that e-mail: “[o]k on [the] [R]ecordings.” But, as discussed elsewhere in this

opinion, Ms. Palowsky testified that the Recordings were an ancillary issue—not a

part of the settlement—that would have been handled in a release but for her and

her firm being fired before the release could be completed.

Based on the evidence, we find no manifest error in the trial court’s finding

that the Recordings were not a material element of the settlement. We note, as

NOLA Title contends, La. C.C. art. 3076 supports the trial court’s finding; “[a]

compromise settles only those differences that the parties clearly intended to settle,

including the necessary consequences of what they express.” La. C.C. ar. 3076. It

is undisputed the Recordings are not relevant to the underlying dispute between the

parties at issue in the case.

Counsel’s Lack of Express Authority to Settle

Counsel’s authority to settle requires the client’s clear and express consent.

Tran, 01-0675, p. 5, 806 So.2d at 106; see also La. C.C. art. 2997. Counsel’s

general authority, in an attorney-client relationship, to settle a client’s case only

23

authorizes counsel to negotiate a settlement. See Lemoine v. Thornton, 13-889, p. 9

(La. App. 3 Cir. 2/12/14), 161 So.3d 666, 671.

Here, Archon emphasizes that none of its executives or officers was present

at the March 21, 2022 court conference to state its acceptance on the record;

Archon’s only representative present at the conference was its former counsel.

Archon contends that it neither approved nor authorized anybody to agree on

behalf of Archon—including its former counsel--to a settlement that included only

the terms recited on the record on March 21, 2022. Mr. Barrios attested to this fact

in his affidavit. Given the inconsistency between Mr. Barrios’ attestations that Ms.

Palowsky lacked authority and Ms. Palowsky’s representation on the record at the

court conference that she had such authority, the trial court, on its own motion, set

this matter for an evidentiary hearing to resolve the authorization issue.

At the evidentiary hearing, two witnesses testified—Mr. Barrios and Ms.

Palowsky. The trial court posed to Mr. Barrios the core question of whether

Archon authorized Ms. Palowsky to enter into the settlement recited on the record.

Mr. Barrios’ response was “Yeah, but not on those terms.” Nonetheless, Mr.

Barrios acknowledged that he agreed with the terms that were recited on the

record. But he insisted there was a missing, material term—the Recordings.

Moreover, Mr. Barrios testified that the Recordings were the entire basis for his

willingness to settle. He further testified that he did not authorize Ms. Palowsky to

settle without a provision addressing the Recordings.

Ms. Palowsky, in contrast, testified that she was authorized to enter into the

settlement that was read into the record. Ms. Palowsky explained that she and Mr.

Ormsby, NOLA Title’s counsel, never discussed the Recordings as being a part of

24

the settlement that the parties were going to put on the record. Ms. Palowsky

testified that “[t]he settlement was the money.”

Ms. Palowsky also testified that the purpose of the off-the-record telephone

call that she had with Mr. Rebeor and Ms. Barrios during the court conference was

to clear up the payment terms, which were the heart of the deal.14 As discussed

elsewhere in this opinion, Ms. Palowsky characterized the Recordings as an

ancillary issue that would have been handled in a release but for her firm being

fired before the release could be completed.

At the close of the evidentiary hearing, the trial court—in again addressing

the authorization issue and denying NOLA Title’s request for attorney’s fees for

bringing the Motion to Enforce—observed:

“[T]here is a genuine issue . . . whether or not . . . Ms.
Palowsky had authority[] to enter into the settlement. . . .. It turns out
nobody was lying. They told her she could settle for [$]375[,000]. The
comment was: Recordings ‘ok.’ They were going to be dealt with in a
release. And then [the Bezou Firm] [was] discharged. Another law
firm [the Sher Garner Firm] came on, drew up a different release,
changed the rules of the game.

The trial court determined that Ms. Palowsky was authorized to settle for the terms

recited on the record. We cannot conclude the trial court was manifestly erroneous.

CONCLUSION

The trial court’s finding that there was a valid and an enforceable

compromise agreement was essentially a finding that there was a meeting of the

minds between the parties as to exactly what they intended at the time the

compromise was recited on the record on March 21, 2022. In concluding there was

a meeting of the minds, the trial court made three underlying factual findings. First,

14 Mr. Barrios testified he did not recall being patched into the call during the court conference.

He also testified that only he had authority to authorize a settlement on Archon’s behalf. He
testified that Mr. Rebeor lacked that authority.

25

it found that the material terms of the settlement were the terms recited on the

record; the Recordings were not a material term. Second, it found that Archon

expressly authorized Ms. Palowsky to approve the settlement recited on the record.

Finally, it found that the parties, and the trial court, anticipated after the settlement

was recited on the record that there would be further documentation memorializing

the settlement agreement—not an entirely new settlement.15 We find no manifest

error in the trial court’s factual findings.

DECREE

For the foregoing reasons, we convert Archon’s appeal into a supervisory

writ application, grant the writ, but deny relief.

APPEAL CONVERTED TO APPLICATION FOR SUPERVISORY
WRIT; WRIT GRANTED; RELIEF DENIED

15 In its brief to this court, Archon acknowledged that it rejected NOLA Title’s offer to return the

Recordings. Archon’s reasoning was that while NOLA Title offered, for the first time, to destroy
the audio recordings at the July 18, 2022 evidentiary hearing, that offer was made after Archon
had already incurred significant costs and fees in opposing a purported settlement agreement that
did not address the Recordings. At that time, Archon was no longer willing to accept the terms of
the prior settlement offer because of the additional fees and costs incurred. But, NOLA Title
points out that Archon is now seeking to add provisions to the settlement that were not part of the
original deal. The terms recited on the record made no mention of non-disparagement, attorneys’
fees, or liquidated damages provisions or an unworkable warranty regarding the Recordings.

26