Kearns & Associates Company et al v. Carter et al

Filing 164

RULING: The Carter Parties' 159 Second Motion to Enforce Stipulated Settlement and Motion to Submit Judgment in Accordance with Stipulated Settlement filed by defendants Ricky S. Carter and Ricky Carter & Associates, Inc., and S & P Specialties Company, LLC, counter-claim plaintiff, is denied. Signed by Magistrate Judge Stephen C. Riedlinger on 1/17/2014. (JDL)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

KEARNS & ASSOCIATES CO., ET AL
CIVIL ACTION
VERSUS
NUMBER 10-439-SCR
RICKY S. CARTER, ET AL
RULING ON CARTER PARTIES’ SECOND MOTION TO ENFORCE STIPULATED
SETTLEMENT AND MOTION TO SUBMIT JUDGMENT
Before the court is the Carter Parties’ Second Motion to
Enforce Stipulated Settlement and Motion to Submit Judgment in
Accordance with Stipulated Settlement, filed by defendants Ricky S.
Carter and Ricky Carter & Associates, Inc., and S & P Specialties
Company, LLC, counter-claim plaintiff (hereafter, collectively the
“Carter Parties”).

A response was filed by plaintiffs Kearns &

Associates

d/b/a

Company

Steam

&

Process

Repairs

and

S

&

P

Specialties Company, LLC.1
It

is

unnecessary

to

set

forth

in

detail

the

parties’

arguments and exhibits related to this motion. It is sufficient to
state the following.

On the fifth day of trial, the trial was

terminated before the case was submitted to the jury based on the
parties’ statements that a settlement was reached.

The parties

then recited for the record the general terms of the settlement.
These terms are reflected in the transcript of the proceedings on

1

Record document number 160.
The Carter Parties filed a
reply memorandum. Record document number 163.

August 17, 2012.2

Nevertheless, as explained in the Ruling on

Motions to Enforce Settlement the settlement agreement recited for
the record did not contain all of the provisions of the employment
agreement, specifically the language/terms of the non-competition
portion of the anticipated employment agreement.3
It is apparent that since the trial ended and the ruling
issued on the previous motions to enforce settlement agreement the
parties’

negotiations

toward

reaching

an

agreement

specific language of this provision have failed.

over

the

Furthermore,

information contained in the present motion and the Notice of
Removal along with the Verified Petition for Damages Specific
Performance, and Injunctive Relief filed by the plaintiffs in state
court on April 26, 2013,4 clearly demonstrate that the parties have
not reached a final settlement. The record shows that on March 12,
2013 defendant Ricky Carter sent a letter stating he was resigning
from his employment with S & P Specialties Company, LLC effective
March 31, 2013.

The first reason given for his resignation was

Carter’s belief that the plaintiffs intentionally frustrated his
efforts to document the terms of the settlement by refusing to

2

Record document number 148-2, Transcript of Settlement.

3

Record document number 156, ruling; record document numbers
148 and 149, motions.
4

Record document number 159-10, Exhibit 8, Verified Petition
for Damages Specific Performance, and Injunctive Relief; also
Civil Action Number 13-322-JJB-SCR, record document number 1-2,
Notice of Removal, Exhibit A.
2

agree and sign a settlement agreement containing a non-competition
provision that he believes complies with Louisiana law.5

The state

court suit filed by the plaintiffs and removed by the Carter
Parties alleges a claim for breach of contract based on Carter’s
failure to perform his obligations under the settlement agreement.
The alleged facts supporting this claim are that Carter resigned
his employment and refused to sign an employment agreement with a
non-competition provision that the plaintiffs proposed on March 22,
2013.6
Under Louisiana law a compromise or agreement to settle a
lawsuit 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.

The purpose

of the law governing compromises is to insure proper proof of
extra-judicial agreements.

Under Louisiana law such a compromise

must be made in writing and signed by both parties in order to be
valid. The alternative is for the compromise to be recited in open
court, in which case the recitation must be susceptible of being
transcribed from the record of the proceedings.7

5

Furthermore,

Record document number 159-5, Exhibit 3.

6

Record document number 159-10, Exhibit 8, Verified Petition
for Damages, Specific Performance and Injunctive Relief, ¶¶ 15-19.
7

Louisiana Civil Code Articles 3071 and 3072; Troxclair v.
Parish of St. Charles, 450 So.2d 759, 760 (La.App. 5 Cir. 1984);
Preston Law Firm, LLC v. Mariner Health Care Management Co., 622
(continued...)
3

recital of such agreements in open court must make full disclosure
of the terms so that all parties concerned are fully advised and
informed of their rights and obligations.8

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.9
Based on these legal principles, the record establishes that
the parties have not still reached a final, valid and enforceable
settlement of this litigation.

It is evident from the settlement

transcript that the parties’ initially,

and at all subsequent

times, intended that the specific terms of their final settlement,
which included Carter’s employment contract, would be embodied in
a written document signed by the parties.

That written, signed

settlement agreement would be referenced in an judgment agreed to
by the parties and signed by the court.
specify

that

judgment.10

the

court

retained

The judgment would also

jurisdiction

to

enforce

the

It is undisputed that since the trial was terminated

on August 17, 2012 none of these things have occurred.

Thus, the

7

(...continued)
F.3d 384 (5th Cir. 2010).
8

Troxclair, 450 So.2d at 761; Walton v. Walton, 597 So.2d
479, 484 (La.App. Cir. 1992).
9

Abadie v. Metropolitan Life Insurance Company, 712 So.2d
932, 934 (La.App. 5 Cir. 1998).
10

This is evident from the transcript (Tr. pp. 10-15, 19, 24)
and the draft documents submitted by the parties in connection with
this motion and the earlier motions to enforce.
4

requirements for a valid compromise under the first part of Article
3071 have not been met.
Nor did the parties’ recital of the terms of the settlement
agreement in open court give rise to a valid settlement agreement.
The agreement recited for the record did not fully disclose the
terms of the agreement such that the parties were aware of all of
their rights and obligations.

This is clear from the transcript

and the record in this case since the trial ended.

When the

agreement was summarized in court, all of the terms and provisions
of the employment contract and non-competition provision were not
recited for the record.

Specifically, neither the parties nor

their counsel stated the parishes, municipalities or parts of them
that would be included in the non-competition provision of the
employment contract.

Since then the parties have been unable to

provide a signed settlement agreement and judgment to the court,
because there has been no meeting of the minds on this material
portion of the settlement.

Therefore, the alternative method for

the parties to establish a valid compromise - recitation of the
terms in open court - also fails because full disclosure and a
meeting

of

the

minds

is

lacking

on

a

critical

part

of

the

settlement.
Conclusion
In summary, the court cannot grant any of the relief requested
in the Carter Parties’ motion.

It is apparent that this case is

5

not

settled

and

the

merits

of

the

parties’

claims

remain

unresolved.
It is truly disappointing that after a nearly week long jury
trial, and their despite their subsequent efforts, the parties have
been unable to confect a valid and binding settlement agreement.
However, the court does not have the inherent power to simply
impose a non-competition provision to complete the settlement, and
the parties have not given the court the authority to do so either.
Since the parties’ claims have not been resolved, and there is no
binding, enforceable settlement, the parties will be required to
show cause why the court should not declare a mistrial and set a
new trial date.

A separate order setting a date for a show cause

hearing will be issued.

Accordingly, the Carter Parties’ Second Motion to Enforce
Stipulated Settlement and Motion to Submit Judgment in Accordance
with Stipulated Settlement filed by defendants Ricky S. Carter and
Ricky Carter & Associates, Inc., and S & P Specialties Company,
LLC, counter-claim plaintiff, is denied.
Baton Rouge, Louisiana, January 17, 2014.

STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE

6