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Gilbert v. Gottsegen

Court of Appeals of Louisiana, Fifth Circuit

May 21, 2015

WINIFRED B. GILBERT, WIFE OF AND NOEL M. GILBERT
v.
WARREN GOTTSEGEN

Page 290

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 573-388, DIVISION " N" . HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING.

ROY A. RASPANTI, ATTORNEY AT LAW, Metairie, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT.

GUSTAVE A. FRITCHIE, III, ATTORNEY AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.

HARRY A. ROSENBERG, ATTORNEY AT LAW, New Orleans, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.

MATTHEW D. MONSON, ATTORNEY AT LAW, Mandeville, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.

EDWARD P. GOTHARD, ATTORNEY AT LAW, Metairie, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.

Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson and Stephen J. Windhorst.

OPINION

Page 291

[14-593 La.App. 2 Cir. 3] ROBERT A. CHAISSON, J.

In this suit for breach of contract and various tort claims based in fraud, Winifred B. Gilbert and Noel M. Gilbert (the " Gilberts" ) appeal a summary judgment granted in favor of defendants, who are former business partners of the Gilberts, a corporation owned by the business partners, attorneys who represented the business partners regarding the business venture, the law firms of those attorneys, and the insurer of one of the law firms. Upon de novo review, for the following reasons, we affirm the grant of summary judgment in favor of all defendants.

FACTS AND PROCEDURAL HISTORY

In 1980, Dr. Warren Gottsegen and his then wife (the " Gottsegens" ) became business partners with the Gilberts when the

Page 292

Gottsegens purchased a one-half interest in a piece of commercial property, the other half of which was already [14-593 La.App. 2 Cir. 4] owned by the Gilberts.[1] In 1983, the Gilberts and Gottsegens jointly refinanced the property with Pelican Homestead and Savings Association (" Pelican Homestead" ). By 1986, after the loan had become delinquent, the Gilberts and Gottsegens entered into an agreement regarding the loan. It is this agreement that is the subject of the Gilberts' breach of contract claims. There is no dispute that, due to financial constraints on the Gilberts at that time, the Gottsegens agreed to bring the loan current and the Gilberts signed a promissory note in favor of the Gottsegens for the Gilberts' share of the delinquent payments and for any future payments the Gottsegens would make on their behalf. The parties agreed that the Gilberts would repay the note to the Gottsegens out of their share of the sale of the property. The Gilberts contend that under the agreement, Dr. Gottsegen additionally obligated himself to sell the property and to pay both parties' shares of all future loan payments until such time as the property was sold. Dr. Gottsegen disputes that he obligated himself to sell the property. He also contends that while the Gilberts were obligated to repay any future payments that he did make on their behalf, he did not assume responsibility for, nor obligate himself to pay, the Gilberts' share of future loan payments.

Subsequent to the 1986 agreement, the Gottsegens continued to make payments on the loan until 1992, at which time they discontinued paying the note and the loan again went into default. In 1994, the then current holder of the note, National Information Services, Inc. (" NIS" )[2], brought suit for executory process, which resulted in the property being sold at sheriff's sale to NIS for an amount substantially less than it had appraised for in 1982.[3]Thereafter, NIS obtained a [14-593 La.App. 2 Cir. 5] deficiency judgment against the Gilberts and Gottsegens in an amount in excess of $454,000.[4]In 1999, attorney Mitchell J. Hoffman, acting on behalf of the Gottsegens, negotiated a full settlement of the deficiency judgment with NIS in the amount of $450,000, which amount was paid by Dr. Gottsegen. Subsequent actions undertaken by Dr. Gottsegen and his attorneys to recover the Gilberts' virile share of the deficiency judgment from them form the basis of the Gilberts' tort claims based in fraud.

On or about October 6, 1999, Dr. Gottsegen paid $450,000 in full settlement of the NIS deficiency judgment. On October 20, 1999, attorney Kermit L. Roux, III, acting on behalf of Dr. Gottsegen, filed into the NIS suit a Partial Motion to Dismiss, which contained a clause subrogating NIS's deficiency judgment rights to Dr. Gottsegen. On September 20, 2000, Mr. Roux obtained from NIS an assignment of its deficiency judgment rights to Cardiovascular Surgery Associates, Inc. (" CSA" ), a company solely owned by Dr. Gottsegen, effective as of October 11, ...


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