DRAKE, J.
The plaintiff/appellant, Harold Asher, in his capacity as succession representative of the Estate of Harold Otis Wright, appeals a final judgment of the district court, which granted a motion for summary judgment and sustained a peremptory exception of compromise and a peremptory exception of acceptance of arbitration award in favor of the defendant/appellee, A.G. Edwards and Sons, Inc. ("A.G. Edwards"), and dismissed the plaintiff's claims, with prejudice. For the following reasons, we affirm.
In the prior appeal in this matter, the facts of this case were previously set forth by our supreme court in In re Interdiction of Wright, 10-1826 (La.10/25/11), 75 So.3d 893. Harold Otis Wright was paralyzed and incapacitated by a medical accident in 1973. He received damages totaling approximately
In 2002, Mrs. Wright filed a petition for damages in the Twenty-First Judicial District Court against several defendants, including Mr. Reardon and A.G. Edwards, alleging breach of fiduciary and contractual duties, including violations of securities law. Particularly, Mrs. Wright argued that Mr. Reardon had misappropriated the entire $1.7 million and disbursed the principal from the account, without court approval, from February 1994 to December 2002, thereby violating the 1982 Order. Additionally, Mrs. Wright alleged further violation of the court's order when Mr. Reardon left A.G. Edwards, went to work for Morgan Stanley Dean Witter, Inc. ("Morgan Stanley"), and took the remaining principal of the account ($700,000) with him to Morgan Stanley. Also, Mrs. Wright contended that A.G. Edwards had failed to supervise Mr. Reardon's management of the account.
In response, A.G. Edwards filed an exception of prematurity based on the account agreements signed by Mrs. Wright, which called for binding arbitration prior to any judicial action. The parties consented to a stay of all further proceedings in this action pending the completion of arbitration. Mrs. Wright also consented to arbitration of the claim through a National Association of Securities Dealers ("NASD") Arbitration Uniform Submission Agreement. Thereafter, the district court issued a judgment on the parties' consent motion to stay the action pending arbitration before the NASD. While the arbitration was pending, Mr. Wright died, thereby terminating the interdiction proceeding. Harold Asher was appointed as the decedent's succession representative and was substituted for Mrs. Wright in the arbitration.
On November 23, 2005, in a stipulated judgment, the district court rendered judgment against Mr. Reardon in the amount of $100,000, which was to be paid to the plaintiff.
The plaintiff accepted the check.
In 2008, Mr. Asher filed a motion for contempt of court against A.G. Edwards under Louisiana Code of Civil Procedure article 3611
In 2011, our supreme court reversed the decision of the First Circuit on the res judicata issue, holding that an unconfirmed arbitration award does not have a preclusive effect. See In re Interdiction of Wright, 75 So.3d 893. Following the decision of the supreme court, the plaintiff re-asserted the claims previously set forth in the 2002 petition for damages. In response, A.G. Edwards filed peremptory exceptions pleading the objections of compromise and acceptance of arbitration award.
Following a hearing, the district court granted the motion for summary judgment previously filed by A.G. Edwards, ruling that no genuine issues of material fact existed, and dismissed the plaintiff's claim for compensatory damages arising from the motion for contempt filed by the plaintiff, with prejudice. The district court also sustained A.G. Edwards's peremptory exceptions of compromise and acceptance of arbitration award.
The plaintiff filed his motion for contempt (first in 2005, and re-urged in 2008), in which he sought to recover damages under Louisiana Code of Civil Procedure article 3611 for A.G. Edwards's violation of a court order issued in an interdiction proceeding prohibiting the disbursement of an interdict's funds, in addition to the relief sought in the 2002 petition for damages. In response, A.G. Edwards filed a motion for summary judgment, arguing that the plaintiff could not recover damages pursuant to Article 3611 because the district court never issued a temporary restraining order, preliminary injunction, or permanent injunction in this case. In his sixth assignment of error, the plaintiff contends that the district court erred in ruling that the 1982 Order issued within Mr. Wright's interdiction proceeding, which prohibited a broker's disbursement of the interdict's trust funds, was not an injunction, subject to the plaintiff's recovery of damages pursuant to Article 3611.
Injunction proceedings are governed by Louisiana Code of Civil Procedure articles 3601-3613. An injunction is an ordinary proceeding in which the plaintiff seeks a permanent injunction compelling the defendant to do an act or barring him from acting. An injunction also includes summary proceedings — the temporary restraining order ("TRO") and the preliminary injunction — to compel or bar the disputed act, pending a determination on
Injunctive relief may be granted in cases where irreparable injury, loss, or damage may otherwise result to the applicant, and in other cases specifically provided by law. La. C.C.P. art. 3601; Greenberg v. De Salvo, 254 La. 1019, 1026, 229 So.2d 83, 86 (1969), cert. denied, 397 U.S. 1075, 90 S.Ct. 1521, 25 L.Ed.2d 809 (1970). Irreparable injury is a loss that cannot be adequately compensated in money damages or is not susceptible of measurement by pecuniary standards. Shaw v. Mingle, 94-1579 (La.1/17/95), 648 So.2d 903, 905.
When injunctive relief is granted, the order or judgment must describe "in reasonable detail ... the act or acts sought to be restrained." La. C.C.P. art. 3605. The proscribed conduct must be ascertainable from the "four corners" of the injunctive order or judgment, and not by the mere reference to the petition or other documents. La. C.C.P. art. 3605. Violation of an injunctive order may be punished by contempt, by an action for damages, or by compelling the actor to undo any act performed in violation of the injunctive order. Louisiana Code of Civil Procedure article 3611 provides:
Article 3611 emphasizes the availability of punishment for contempt as a method of enforcing an injunctive order, as opposed to the general provisions on contempt. La. C.C.P. art. 3611, comment (a); see La. C.C.P. arts. 221-227. A contempt of court is defined as any act or omission tending to obstruct or interfere with the orderly administration of justice, or to impair the dignity of the court, or respect for its authority. Contempts of court are of two kinds, direct and constructive. La. C.C.P. art. 221. Direct contempts of court are those committed in open court and of which it has personal knowledge, while a constructive contempt of court is any contempt other than a direct one. La. C.C.P. arts. 222 and 224. The willful violation of a court order, such as the 1982 Order at issue here, constitutes a constructive contempt of court. See La. C.C.P. art. 224. The punishment that a court may impose upon a person adjudged guilty of contempt of court is provided in Louisiana Revised Statutes 13:4611.
The plaintiff argues that the 1982 Order, as well as other orders issued during the interdiction proceedings, which prohibited the disbursement of principal from Mr. Wright's estate, are functionally identical to injunctions. The 1982 Order clearly prohibits the disbursement of Mr. Wright's funds. Although the word "injunction" does not appear in the court's order, the plaintiff avers that the order's meaning and purpose are beyond doubt. The plaintiff also argues that there is no authority requiring that injunctions be expressly labeled. Thus, the plaintiff alleges that because the 1982 Order prohibits the disbursement of funds, it is an injunction, and therefore, the plaintiff is entitled to injunctive relief in the form of compensatory damages pursuant to Article 3611. A.G. Edwards argues in its motion for summary judgment that it was entitled to summary judgment because the district court never issued an injunction in this case and the compensatory damages sought under Article 3611 are unavailable to the plaintiff as a matter of law.
A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. All Crane Rental of Georgia, Inc. v. Vincent, 10-0116 (La. App. 1 Cir. 9/10/10), 47 So.3d 1024, 1027, writ denied, 10-2227 (La. 11/19/10), 49 So.3d 387. A motion for summary judgment should only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that the movant is entitled to summary judgment as a matter of law. La. C.C.P. art. 966(B)(2).
The burden of proof on a motion for summary judgment remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2).
Once the motion for summary judgment has been properly supported by the moving party, the failure of the non-moving
In determining whether summary judgment is appropriate, appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Sanders v. Ashland Oil, Inc., 96-1751 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, 1035, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to this case. Christakis v. Clipper Construction, L.L.C., 12-1638 (La.App. 1 Cir. 4/26/13), 117 So.3d 168, 170, writ denied, 13-1913 (La.11/8/13), 125 So.3d 454.
A.G. Edwards filed six exhibits in support of its motion for summary judgment, including miscellaneous judicial admissions made by the plaintiff, the plaintiff's 2002 petition for damages, the plaintiff's motion for contempt, the interdiction proceeding orders, including the 1982 Order, the plaintiff's 2003 arbitration "Statement of Claim," and the arbitration award. In granting A.G. Edwards's motion for summary judgment, the district court held that the 1982 Order was not an order for injunctive relief and adopted the reasons set forth in A.G. Edwards's memorandum in support of its motion for summary judgment.
Based on our de novo review of the record, we find that the district court properly granted summary judgment in favor of A.G. Edwards. Pursuant to Louisiana Code of Civil Procedure article 3611 and the general contempt provisions in the Code of Civil Procedure, the law is clear that compensatory damages are not available in a contempt proceeding absent an injunction. Here, no injunctive relief in the form of a temporary restraining order, a preliminary injunction, or a permanent injunction has ever been issued by the district court in this case. Furthermore, the 1982 Order was issued by the district court during Mr. Wright's interdiction proceedings and addressed the investment and handling of the proceeds of Mr. Wright's $1.7 million damages award. At the time the 1982 Order was issued, A.G. Edwards was not a party to the interdiction proceeding, and at no time during the interdiction proceeding did the plaintiff ever seek injunctive relief. Absent an injunction, compensatory damages are not available in a contempt proceeding. The requirements of Louisiana Code of Civil Procedure articles 3601-3613 have not been met; thus, the plaintiff is not entitled to compensatory damages pursuant to Article 3611. This assignment of error is without merit.
In his petition for damages, the plaintiff sought to recover roughly $1.7 million dollars in damages caused by A.G. Edwards's breach of contract and breach of fiduciary duty. A.G. Edwards filed peremptory exceptions of compromise and acceptance of
In his first five assignments of error, the plaintiff argues that the district court erred in sustaining A.G. Edwards's exceptions and dismissing the case on the basis that the parties compromised this dispute. First, the plaintiff contends that the law-of-the-case doctrine precluded the district court from ruling again on the compromise issue. Second, the plaintiff alleges that the district court erred in ruling that the curatrix compromised this dispute because the curatrix lacked the legal capacity to enter into a compromise without court approval. Similarly, third, the plaintiff alleges that the district court erred in ruling that the succession representative compromised this dispute because the succession representative also lacked the legal capacity to enter into a compromise without court approval. Fourth, the plaintiff argues the curatrix did not compromise the dispute by executing a pre-dispute arbitration agreement and/or submission agreement. Fifth, the plaintiff avers the succession representative did not compromise this action by accepting a check from A.G. Edwards because the check was not tendered with the express written condition indicating that acceptance would result in a compromise. See La. C.C. art. 3079.
A settlement or 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. 3071, Cutrer v. Open Range RV Co., 12-2046 (La.App. 1 Cir. 8/13/13), 122 So.3d 1102, 1104. Like any contract, a compromise agreement is formed by the consent of the parties through offer and acceptance. See La. C.C. art. 1927. An acceptance not in accordance with the terms of the offer is deemed to be a counteroffer. La. C.C. art. 1943. A compromise is valid only if there is a meeting of the minds between the parties as to exactly what they intended when the compromise was reached. Sceroler v. Rancher, 99-2859 (La.App. 1 Cir. 2/15/02), 808 So.2d 803, 809, writ denied, 02-0811 (La.5/24/02), 816 So.2d 849. A compromise shall be made in writing or recited in open court. La. C.C. art. 3072. A compromise is also made when the claimant of a disputed or unliquidated claim, regardless of the extent of his claim, accepts a payment that the other party tenders with the clearly expressed written condition that acceptance of the payment will extinguish the obligation. La. C.C. art. 3079. A peremptory exception is the proper method by which to assert the legal defense of compromise. The preclusive effect of a compromise can be raised in a peremptory exception, under Louisiana Code of Civil Procedure article 927. La. C.C. art. 3080, comment (a).
The plaintiff argues that A.G. Edwards's compromise argument has already been litigated and rejected by the supreme court. See In re Interdiction of Wright, 75 So.3d 893. However, A.G. Edwards argues that in Wright, the supreme court did not reject the contention that the parties in this matter entered into a compromise because the supreme court did not even take up the issue of whether or not the arbitration award constituted a compromise, such that the parties settled the dispute. We agree.
The supreme court's opinion represents a narrow holding on the issue of res judicata, as applied to an unconfirmed arbitration award, where the plaintiff brought an action for contempt. The supreme court ruled that an unconfirmed arbitration award is not a "judgment" and
Here, Mrs. Wright's account agreement with A.G. Edwards called for binding arbitration prior to any judicial action. Mrs. Wright also consented to arbitration by signing a NASD Arbitration Uniform Submission Agreement, in which she agreed to be bound by the decision of the arbitrators. Following the decision of the arbitration panel, A.G. Edwards sent plaintiff's counsel a cover letter, which stated that the enclosed check in the amount of $180,735.30 was "in satisfaction of the award." The cover letter also indicated that A.G. Edwards was "required to notify the NASD that the award has been satisfied and complied with." The remittance invoice with the check designated the check as a "SETTLEMENT." Upon receipt of the cover letter and check, the plaintiff accepted the proceeds of the arbitration award.
The parties consented to arbitrate their claim in order to settle their dispute. Furthermore, the parties consented to a stay of all proceedings in this case, pending the resolution of the claims through arbitration. As demonstrated through the written agreements to arbitrate (the account documents and the NASD Arbitration Uniform Submission Agreement), the parties' request of the district court for a stay pending arbitration, the decision of the NASD panel, the cover letter and invoice with attached check from A.G. Edwards (indicating "SETTLEMENT"), which represented the arbitration award, it is clear that there was a meeting of the minds in this matter. These documents leave no doubt that the arbitration proceeding was the means by which the Wright estate settled its claims against A.G. Edwards.
As the plaintiff argues, it remains that the defendants could have done more to formalize the arbitration award, such as obtaining a judgment memorializing the award, filing a motion to dismiss the case,
Finally, A.G. Edwards answered the plaintiff's appeal to raise several interlocutory rulings, which it claims provide alternate bases for dismissal of the plaintiff's claims should this court reverse the ruling of the district court on A.G. Edwards's motion for summary judgment and the peremptory exceptions of compromise and acceptance of arbitration award. See La. C.C.P. art. 2133. Based on the foregoing opinion, the arguments contained in A.G. Edwards's answer to appeal are moot.
For the foregoing reasons, the February 27, 2013 final judgment of the district court which granted A.G. Edwards's motion for summary judgment and sustained its peremptory exception of compromise and peremptory exception of acceptance of arbitration award, is hereby affirmed. All costs of this appeal are cast to the plaintiff/appellant, Harold Asher, in his capacity as succession representative of the Succession of Harold Otis Wright.