NIKOLA P. VEKIC
DRAGUTIN POPICH, MARY A. POPICH & HELEN HARRIS POPICH
FROM ST. BERNARD 34TH JUDICIAL DISTRICT COURT NO. 2013-00508,
DIVISION "E" Honorable Jacques A. Sanborn, Judge
A. Tabary III TABARY & BORNE, LLC Three Courthouse Square
and James M. Dill THE DILL FIRM, APLC and David M. Culpepper
DAVID M. CULPEPPER, L.L.C. and Helen Popich Harris HELEN
POPICH HARRIS, APLC COUNSEL FOR DEFENDANTS/APPELLANTS
J. Bordelon Jr. BORDELON & THERIOT & ABRAMS and
Regina S. Wedig COUNSEL FOR PLAINTIFF/APPELLEE
composed of Judge Terri F. Love, Judge Sandra Cabrina
Jenkins, Judge Marion F. Edwards, Pro Tempore
F. Love Judge
instant appeal arises from a dispute over British Petroleum
("BP") settlement proceeds after the parties
executed a sublease for certain oyster leases affected by the
2010 BP oil spill. The trial court found that it was the
parties' intent that seller would receive $90, 000, and
buyer would receive title to the leases. The trial court then
found plaintiff was entitled to the settlement proceeds and
any future damage distribution relating to the leases. We
find the agreement entered into was a sublease with an option
to purchase. Plaintiff was neither the leaseholder of record
on the day of the Deepwater Horizon explosion, nor had he
exercised his option to purchase, and the post-explosion
purchase did not assign defendants' BP settlement claims.
Therefore, the trial court erred when it entered judgment in
favor of plaintiff. Accordingly, the trial court's
judgment is reversed.
HISTORY AND FACTUAL BACKGROUND
2009, plaintiff Nikola Vekic ("Mr. Vekic") wanted
to purchase three oyster leases (collectively "subleased
property") owned by Dragutin Popich ("Mr.
Popich") and his family (collectively "Popich
family"). Mr. Popich was unwilling to execute a credit
sale, but he agreed to enter a sublease with option to
purchase. Roger Harris ("Mr. Harris"), an attorney
and Mr. Popich's son-in-law, prepared a sublease with
option to purchase, a designation of agent to harvest, and a
proposed act of sale. The documents were forwarded and
reviewed by Mr. Vekic and his attorney along with a
transmittal letter indicating that Mr. Popich was
"unwilling to do a credit sale."
Vekic had no suggested changes or issues with the proposed
documents. According to the express sublease terms, Mr. Vekic
agreed to sublease three oyster leases in Bay Boudreau in St.
Bernard Parish from the Popich family. The term of the
sublease was four years unless it was terminated earlier by
either party in accordance with the sublease provisions. The
amount of rent for the term of the sublease was not to exceed
$90, 000, and $30, 000 was due and payable to the Popich
family upon execution of the agreement. Thereafter, rent in
the amount of $20, 000 was due and payable on the anniversary
of the sublease commencement date for the next three years.
sublease also set forth the terms that applied if Mr. Vekic
exercised his option to purchase. The right and option to
purchase was "exercisable at any time on or before April
30, 2012, to purchase the subleased property" for $90,
000. To exercise the option, Mr. Vekic was required to
provide written notice to the Popich family prior to the
deadline and "any rental payments paid pursuant to [the
agreement would] be credited against the purchase price in
dollar-for-dollar amount." Further, the subleased
property was purchased and sold "as is."
parties executed the sublease agreement in April 2009 and Mr.
Vekic issued the Popich family a check for $30, 000
indicating in the memo section "sublease
next year, on April 20, 2010, the Deepwater Horizon well
exploded. At the time of the explosion, Mr. Vekic had not yet
exercised his option to purchase and the Popich family
remained the leaseholder of record. The following year, on or
about June 19, 2011, Mr. Vekic exercised his option to
purchase. The act of sale, originally prepared in 2009, was
executed by the parties without any alterations to its
after the Deepwater Horizon explosion, a plaintiff class sued
BP for damages and losses resulting from the oil spill. By
2012, BP and the Plaintiffs' Steering Committee reached a
settlement agreement ("BP Settlement Agreement"),
which established a compensation plan for qualifying oyster
leaseholders in exchange for settling their claims with BP
and other released parties. To receive settlement proceeds,
claimants were required to: (1) file a claim form with
Deepwater Horizon Economic Claim Center ("DHECC");
(2) provide documents showing they were record owners of the
leases with the Department of Wildlife Fisheries on the day
of the explosion; (3) show that their oyster leases had State
ID numbers; and (4) provide documents showing the geographic
area in which the oyster leases were located.
2012, Mr. Vekic filed a claim with DHECC for all of his lease
holdings, including the subleased property. In January 2013,
Helen Popich Harris ("Mrs. Harris"), attorney and
daughter to Mr. Popich, prepared and filed claims for
herself, her father, and her sister. Their claim forms
expressly informed the DHECC of the 2009 sublease with Mr.
Vekic and the 2011 post-explosion sale of the subleased
property. They also indicated that "the claimants did
not transfer or assign any rights to the cause of action for
the Deepwater Horizon incident to Mr. Vekic."
Mr. Vekic received a proposed settlement offer for his lease
holdings. However, DHECC excluded the subleased property from
Mr. Vekic's recovery. There is no indication in the
record that Mr. Vekic sought review of DHECC's decision.
The Popich family received notice of their proposed
settlement offer as eligibile oyster leaseholders. The Popich
family's proposed settlement offer for the subleased
property totaled $901, 999.50. In exchange for receipt of the
settlement proceeds, the Popich family executed a release of
any claims "arising out of, due to, or relating in any
way to, directly or indirectly, the Deepwater Horizon
the first round of payment was issued, Mr. Vekic sued the
Popich family alleging he was entitled to the BP settlement
proceeds pursuant to their agreement. The Popich family later
received eligibility notices for a second round payment,
totaling $365, 797.79. Before the Popich family received the
second round payment, the trial court ordered the proceeds
deposited into the IOLTA account of counsel for the Popich
family until further order from the court.
Vekic sought a declaratory judgment, claiming that he was
entitled to the proceeds as a result of the sublease
agreement. He amended his petition twice thereafter and
ultimately claimed that the sublease was a disguised sale and
security agreement. The first day of trial was held in
January 2015 and the second day in March 2015, but judgment
was not rendered until January 2016. The Popich family's
motion for new trial was granted, and the trial court
rendered a new judgment in March 2016.
trial court interpreted the sublease agreement as a sale of
subleased property to Mr. Vekic in exchange for $90, 000.
Therefore, the trial court found Mr. Vekic was entitled to
the BP settlement proceeds. The trial court awarded Mr. Vekic
all of the proceeds, less the ten percent attorney's fees
on past BP settlement proceeds and costs pursuant to the
contingency fee agreement between the Popich family and their
attorney. However, the trial court ruled that any future
payments from BP belong to Mr. Vekic to the exclusion of the
Popich family and without any reduction for further
attorney's fees owed. The Popich family timely filed the
general, "a contract, subject to interpretation on the
four corners of the instrument without the necessity of
extrinsic evidence, is interpreted as a matter of law."
New Orleans Jazz & Heritage Found., Inc. v.
Kirksey, 09-1433, p. 9 (La.App. 4 Cir. 5/26/10), 40
So.3d 394, 401 (citing Bartlett Constr. Co., Inc. v.
St.Bernard Parish Council, 99-1186, p. 6
(La.App. 4 Cir. 5/31/00), 763 So.2d 94, ...