Lorre L. Lowe and Rodney C. Lowe, individually and o/b/o Lorre L. Lowe v. Leon Lowe & Sons, Inc., Leon Lowe and Sons Partnership, Lowe Bros., L.L.C. and Toby J. Lowe

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2023 CA 0920

LORRE L. LOWE AND RODNEY C. LOWE, INDIVIDUALLY AND
O/ B/ O LORRE L. LOWE

VERSUS

LEON LOWE & SONS, INC., LEON LOWE & SONS
PARTNERSHIP,,LOWE BROS., L.L.C., AND TOBY J. LOWE

Judgment Rendered:

On Appeal from the
22nd Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Trial Court No. 2017- 10915

Honorable Ellen M. Creel, Judge Presiding

Barry W. Bolton Attorney for Plaintiff A
- ppellant,
Bogalusa, LA Lorre L. Lowe

G. Brice Jones Attorneys for Defendants -Appellees,
Jeffrey L. Oakes Leon Lowe & Sons, Inc., Leon Lowe &
Slidell, LA Sons Partnership, Lowe Bros., L.L.C., and
Toby J. Lowe

BEFORE: McCLENDON, RESTER, AND MILLER, Ji.

1A

4s -,
I-/

HESTER, J.

Plaintiff, Lorre L. Lowe, appeals the judgment of the trial court enforcing the

settlement between plaintiff and defendant, Toby J. Lowe. For the reasons that

follow, we dismiss the appeal.

FACTS AND PROCEDURAL HISTORY

On February 27, 2017, plaintiffs Lorre L. Lowe and Rodney C. Lowe filed a

petition seeking an accounting of certain Lowe Entities, alleging breach of fiduciary

duty, and seeking the removal of the trustee. Leon Lowe & Sons, Inc.; Leon Lowe

Sons Partnership; and Toby J. Lowe, in his individual capacity and in his capacity

as president of Leon Lowe & Sons, Inc., managing partner of Leon Lowe & Sons

Partnership, and trustee of the Leon Lowe & Sons Voting Trust were named as

defendants! Generally, this case involves disputes and protracted litigation among

brothers relating to certain family-owned entities: Leon Lowe & Sons, Inc., Leon

Lowe & Sons Partnership, and Lowe Bros., L.L.C. ( sometimes collectively referred

to as the " Lowe Entities").

On May 11, 2022, the parties to the instant lawsuit as well as parties involved

in related litigation participated in a mediation, resulting in a comprehensive

settlement among the parties and purportedly resolving all issues among them.2 At

the end of the mediation, a handwritten settlement term sheet was signed by Toby,

represented by Jeffrey L. Oakes, and by Rodney and Lorre, both represented by J.

1 Lowe Bros., L.L.C. was not named as a defendant in the petition or supplemental and
amending petition. However, the petition contains allegations against Lowe Bros., L.L.C., and
Lorre requested service of the original petition on Lowe Bros., L.L.C. Service of the supplemental
and amending petition was not requested on Lowe Bros., L.L.C.
2 Pursuant to the settlement documents, the parties were involved in the following lawsuits,
all filed in the 22nd Judicial District Court in St. Tammany Parish: ( 1) Succession of Angeline
Lowe, Case No. 2011- 30446, commenced on June 10, 2011; ( 2) Toby Lowe v. Oak Island
Corporation, Case No. 2013- 13734, commenced on August 9, 2013; ( 3) Lorre Lowe, et al. v. Leon
Lowe & Sons, Inc., et al., Case No. 2017- 10915, commenced on February 27, 2017; (4) Leon Lowe
Sons, Inc. v. Lorre Lowe, Case No. 2020- 11651, commenced on April 3, 2020; ( 5) Leon Lowe
Sons Partnership v. Lorre Lowe, Case No. 2020- 11667, commenced on April 3, 2020; and ( 6)
Matthew Lowe v. Oak Island Corporation, Case No. 2021- 12584, commenced on June 10, 2021.
Also see In re: Dissolution of Oak Island Corporation, 2023 CA 1239, handed down by this court
on this date.

2

Douglas Sunseri. In the months following the mediation, the parties collaborated in

the drafting of documents necessary to effectuate the terms of the settlement.

However, Lorre refused to sign settlement documents.

On October 24, 2022, Toby filed a motion to enforce the settlement

agreement, alleging that Lorre signed a valid and binding settlement agreement on

May 11, 2022 and had no valid basis to refuse to sign the documents required to

execute the terms of the settlement. Thus, Toby sought an order compelling Lorre

to execute the documents needed to effectuate the settlement. Alternatively, Toby

requested that the trial court enter an order specifically enforcing the settlement term

sheet and declaring the settlement terms effectuated despite Lorre' s refusal to sign

the settlement documents.

Prior to the hearing on the motion to enforce the settlement agreement, which

was scheduled for March 2, 2023, Mr. Sunseri and his law firm filed a motion to

withdraw as counsel of record for Lorre. As stated in the motion to withdraw, Lorre

made Mr. Sunseri' s law firm aware that he sought alternative legal counsel in this

matter on February 3, 2023. Mr. Sunseri' s law firm then made four attempts to

contact Lorre' s prospective new counsel, Barry W. Bolton, via telephone to no avail.

Mr. Sunseri' s law firm also sent an e- mail to Mr. Bolton. According to the motion

to withdraw, these attempts to contact Mr. Bolton were made to confirm the scope

of his representation from February 3, 2023 going forward. Ultimately, Lorre

officially notified Mr. Sunseri' s law firm on February 14, 2023 that he terminated

their services and retained new counsel, Mr. Bolton. The trial court signed an order

permitting Mr. Sunseri and his firm to withdraw as counsel for Lorre on February

16, 2023.

3

On or about February 24, 2023, Mr. Bolton filed a motion to continue the

March 2, 2023 hearing on the motion to enforce the settlement agreement. 3 The trial

court held a hearing on the motion to continue, and ultimately granted the motion,

acknowledging that this was the first continuance requested by Mr. Bolton who was

retained two weeks prior to the hearing. However, the trial court made it clear that

the continuance was not to be for an indefinite period and extensively questioned

Mr. Bolton about what discovery was needed prior to the hearing on motion to

enforce the settlement and the time needed to obtain such discovery. After the trial

court proposed a new hearing date of May 4, 2023, which was in sixty days, the

following was transcribed:

BY THE COURT:

All right.May 4th. Can you get the depositions done and the
forensic accounting done by May 4th?

BY MR. BOLTON:

We will make every effort to do that.

BY THE COURT:

Okay. This is the time to talk about it because another
continuance won' t be granted. It' s a six year case with a mediation that
now we just need to figure out will it or won' t it.

After discussing the additional time Lorre' s forensic accountant needed to complete

the accounting, which counsel for Toby maintained was not relevant to the issue of

whether Lorre signed the settlement agreement or whether the settlement agreement

is valid, the trial court stated as follows:

All right. Gentlemen, listen to me. That' s not a good enough
reason to undo this. Mr. Bolton is new to this case. Although, Mr.
Bolton, you could have done a better job by this Court and my
docketing. Because not only do other people put time into it, I put time
into it. I think it' s evident to everybody that I come in and I' m prepared

3 The record reflects that on March 2, 2023, Mr. Bolton enrolled as counsel of record for
Lorre and filed a motion to continue on the same date. However, the transcript from the hearing
on the motion to continue establishes that the motion to continue was fax filed on February 24,
2023 at 10: 36 a.m.

11

to make a ruling today, on what I have been presented with. Okay? We
put a lot of hours into that.

So you and your client could have done better asking for it
sooner.I' m none too happy about that. But he has alleged things that
would conceivably point to undoing the 5/ 11 [ settlement] document.
Not that there' s a lot of latitude to do that, Mr. Bolton. Your latitude is
very narrow. You know what the things are, fraud, error, duress. That' s
it.

Because it' s a very narrow inquiry, giving you the continuance
until May 4th. Whatever you do with that time, if you spend another
20, 000 or another 100, 000, that doesn' t matter to me. But that' s the

amount of time that you have to address the very narrow issues that I
need to hear on this.

The case has been pending for six years. When you take a case
that' s been pending with six years with a pending court date, you know
that it' s not going to drag out any further.
Mr. Bolton responded, " I understand." Thereafter, the trial court made it clear that

no further continuances would be granted for any party, to which Mr. Bolton

responded, " Thank you, Your Honor."

At the May 4, 2023 hearing, Mr. Bolton argued that the two-month

continuance was not a sufficient time period within which to request discovery or to

get experts and doctors involved. Further, Mr. Bolton argued that additional time

was necessary due to the fact his client was required to " terminate his [prior] attorney

because he felt his attorney was in collusion with opposing counsel." Mr. Bolton

also informed the court that Lorre' s prior attorney did not furnish his file to current

counsel. Despite Mr. Bolton' s attempts to request that the hearing be continued

again, the trial court would neither entertain nor allow any further continuances.

The trial court then conducted the hearing on the motion to enforce.' The trial

court heard testimony from Toby, Lorre, and Mr. Oakes and exhibits were

introduced into the record. At the conclusion of the hearing, the trial court granted

the motion to enforce, providing extensive reasons therefor. The trial court expressly

4 As the trial court later noted in its judgment, despite having obtained a continuance of
the original hearing date on the motion to enforce, Lorre failed to file an opposition to the motion
to enforce.

5

determined that Lorre had the capacity to enter into the settlement negotiations at

the mediation. In doing so, the trial court noted Lorre' s extensive testimony

regarding corporate ownership of the properties and businesses in which he has an

interest; his knowledge of amounts paid in federal and state taxes for multiple years;

his own business dealings; and his demeanor on the stand. Based on the testimony

and evidence presented, the trial court also determined that there was no fraud, no

duress, and no error.

On May 22, 2023, the trial court signed a judgment granting the motion to

enforce settlement. The judgment ordered Lorre to sign specific documents in the

form executed and circulated by counsel for Toby on or about October 7, 2022,

including the Settlement Agreement, the Act of Redemption of Shares regarding the

Corporation, and the Act of Transfer of Membership Interests in a Limited Liability

Company regarding the Limited Liability Company, on or before June 21, 2023.

The judgment further set a compliance hearing on June 22, 2023 to determine

whether and to what extent Lorre complied with the May 22, 2023 judgment and to

consider any additional relief that may be appropriate if Lorre did not comply.

On May 22, 2023, Lorre filed a motion to suspensively appeal the May 22,

2023 judgment, which was granted. However, by failing to timely post security for

the suspensive appeal, the appeal was converted to a devolutive appeal by judgment

dated August 3, 2023. On appeal, Lorre assigned the following errors contending

that the trial court erred in: ( 1) granting an excessively limited continuance of the

March 2, 2023 hearing; ( 2) proceeding with the May 4, 2023 hearing when Lorre

had good grounds for continuance; and ( 3) not granting a continuance of the May 4,

2023 hearing.

APPELLATE JURISDICTION

As an appellate court, we have the duty to examine our subject matter

jurisdiction and to determine sua sponte whether such subject matter jurisdiction

Cel

exists, even when the issue is not raised by the litigants. Gulfco of Louisiana, LLC

v. Plaisance, 2022- 0166 ( La. App. 1st Cir. 3/ 8/ 23), 362 So. 3d 660, 662. This court' s

appellate jurisdiction only extends to " final judgments." Id. See also La. C. C. P. art.

2083( A). A final judgment is one that determines the merits in whole or in part,

whereas an interlocutory judgment does not determine the merits but only

preliminary matters in the course of an action. La. Code Civ. P. art. 1841.

In Myers v. Diaz, 2022- 0445 ( La. App. 1st Cir. 11/ 4/ 22), 354 So. 3d 78, 80-

81, this court considered a judgment granting a motion to enforce a settlement

agreement. The judgment ordered defendants to pay specific amounts to plaintiff

and ordered plaintiff to execute a full release agreement in favor of defendants,

which was to contain a reservation of plaintiffs claims against certain UM, property

damages, and statutory penalty claims against certain insurers. This court concluded

that " the judgment [ was] a non -final, interlocutory judgment, which [ was] not

appealable," observing that the judgment granting the motion to enforce was " devoid

of language dismissing any of the parties, neither does it dispose of the entire

matter." Id.

In this matter, the May 22, 2022 judgment is not final as it fails to determine

the merits in whole or in parts There is no dismissal of parties nor is the entire case

5 Louisiana Code of Civil Procedure art. 1918( A) provides, in part, that " a final judgment
that does not contain the appropriate decretal language shall be remanded to the trial court, which
shall amend the judgment permits a judgment lacking decretal language[.]" Louisiana Code of
Civil Procedure art. 1951 provides that "[ o] n motion of the court or any party, a final judgment
may be amended at any time to alter the phraseology of the judgment or to correct deficiencies in
the decretal language or errors of calculation." However, a final judgment may not be amended
under La. Code Civ. P. art. 1951 to change its substance. Even if the judgment at issue in this case
was a final judgment, any amendment thereto would require a substantive change, which would
preclude this court from remanding the matter pursuant to La. Code Civ. P. art. 1918( A).

7

dismissed.' In fact, the motion to enforce did not seek dismissal of any party or of

the entire lawsuit. Moreover, the judgment contemplates further action in the case,

providing that a compliance hearing is to be held in the future " to determine whether

and to what extent Lorre L. Lowe has complied with this Judgment and to consider

any additional relief that may be appropriate in the event of his noncompliance."

Emphasis added.) While this matter may be in its final stages, it has not reached

final resolution in whole or in part. Therefore, the judgment is a non -final,

interlocutory judgment, which is not appealable. See Myers, 354 So. 3d at 81.

The proper procedural vehicle to contest an interlocutory judgment is by

application for supervisory writ filed within thirty days of the interlocutory

judgment. See La. Code Civ. P. art. 2201; Myers, 354 So. 3d at 81. Under certain

circumstances, appellate courts have exercised the discretion to convert an appeal of

an interlocutory judgment into an application for supervisory writs, such as when

the motion for appeal was filed within the thirty -day time period allowed for the

filing of an application for supervisory writs under Uniform Rules— Courts of

Appeal, Rule 4- 3 and where reversal of the trial court' s decision would terminate the

litigation, or where clear error in the trial court' s judgment, if not corrected, will

create a grave injustice. Sauce v. Burke, 2022- 0541 ( La. App. 1st Cir. 11/ 7/ 22),

356 So. 3d 439, 447.

While Lorre sought an appeal of the May 22, 2023 judgment within the thirty -

day time period allowed for the filing of an application for supervisory writs under

6 In particular, we note that Leon Lowe & Sons Partnership is a named defendant in this
litigation. At the hearing, counsel for Toby and the Lowe Entities informed the court that nothing
was resolved at the mediation relative to Leon Lowe & Sons Partnership. The trial court

acknowledged that the motion to enforce would be strictly in regard to Leon Lowe & Sons, Inc.
and Lowe Bros., L.L.C. However, Lowe Bros., L.L.C. was never named as a defendant in the
petition or supplemental and amending petition, and the May 22, 2022 judgment at issue only
refers to " Defendants" without identifying which defendants it was granting the motion to enforce
in favor of.

I As noted supra, Toby requested in the alternative that the trial court enter an order
specifically enforcing the settlement term sheet and declaring the settlement terms effectuated
despite Lorre' s refusal to sign the settlement documents.

Uniform Rules— Courts of Appeal, Rule 4- 3, because the other criteria set forth

above has not been met, we decline to exercise our supervisory jurisdiction to review

the May 22, 2023 judgment. See Sauce, 356 So. 3d at 448; Stelluto v. Stelluto,

2005- 0074 ( La. 6/ 29/ 05), 914 So. 2d 34, 39 ( the decision to convert an appeal to an

application for supervisory writs is within the discretion of the appellate court).

CONCLUSION

For the above and forgoing reasons, Lorre L. Lowe' s appeal ofthe trial court' s

May 22, 2022 judgment is dismissed. Costs of this appeal are assessed to the

plaintiff-appellant, Lorre L. Lowe.

APPEAL DISMISSED.

M

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2023 CA 0920

r r

ENO
VERSUS

LEON LOWE & SONS, INC., LEON LOWE AND SONS
PARTNERSHIP, LOWE BROS., L. L. C. AND TOBY J. LOWE

McClendon, J., dissenting in part.

I agree that this court lacks appellate jurisdiction. However, I believe this court

should exercise its supervisory jurisdiction to review this matter and address the issues

presented for review.