for today it's two thousand and seventeen three zero seven six nine pan american life insurance company vs louisiana acquisition court good morning good morning george fowler i represent penn american palak this case need reversal you know before i argue before i have nothing else part of the talk about there's no law in this case this is a four year heavily contested case and i was ready to go to a jury trial and i asked judge xeni many times to let me about divestiture gotta sell it or fraud mismanagement coercing your client but before you get to any of that if your client wrote in an ambiguous release i thought it doesn't seem to be so much of a ok ok well what it is is at the top it's got the language of the side letter agreement and it's on the left hand side it's got the language was any ambiguity he said there was a commitment to do something in the future but ultimately after the purchase agreement and we sold the hotel for a lot less than it was worth because they gave us that release language i have to stop you with one threshold question if you say we sold asking palak but but but but and a part of the difficulty for me reading this record in the brief is you also were counsel for the partnership in the sale only in the sale but the so the e mails and the issues that we've got have you representing the partnership have a you representing one partner against the other and now here you are before us you don't see any conflict of interest in terms of your what representations as to resolving this issue no we can't because i researched the before and under louisiana law a partnership is the separate  palak and on on the controversies between the parties which at the beginning we didn't know but at the same time you're advising one partner against the other you are also he found it ok the problem with this document to support the dismissal of my client and my client is simple my client didn't give at any time any release he talks about a future commitment to something as just exactly what jersey said in the language so he he they agreed to do something but the only after the closing the only thing we got the only got was a voluntary terminations agreement signed by that panic on had to sign so either they forgot or didn't do it or the thought of the voluntary germination agreement of the following we're going to pay close to half a million why isn't that crystal clear this is the release it's we have one sentence followed by another that this is the present tense are green well because  your best argument that the present tense statement we agree to resolve it for this i'm out where's the n b a when we agreed to resolve for that amount yeah the case is a sixty million dollars case where years in litigation sixty million dollars hotel sale but that isn't as you know no no no no or claim for sixty million ok they get they the hotel was sold for twenty some million dollars less than it what it should have been sold for i gun to your head i just don't see the relevance of that they may have said to you at the last minute you should look at our books this is a number you're agreeing to free and clear equal and both bridges over but let me finish my point you know so we have two business entities that have been sort of been a bad even if antagonistic to each other for decades you're a powerful corporate entity they say this is what we think we need to have for release and it's at the last minute but what's the relevance of that you're going to said ok we'll hold off the sale we don't like to to say no well but you know i would like to present that to the jury i know ok that's you know you know you know i know you've got an opinion jamie had an opinion but i'm trying to extract and test the arguments ok in opinion  presentation saying no it's not if it was two point seven million says no it's not it's only for four hundred thousand dollars and you got to give us a release for everything for the four hundred thousand dollars so there's a huge hotel chain with our company was making twenty three million dollars we're a life insurance company and they they gave it to us and they said and you have to release is for fraud going disclose all the renovation when we did discovery when we did discovery we realized that the bill was some overcharges but this is a little small part of this case yet and then and then doesn't appear anywhere in this release you know as a way except that you're right that it's unclear it looked the rate the even the e mails that you describe in the reply brief look like it was very obvious palak thought we've got to sell this hotel and therefore we're going to have to sign a release i mean that is the e mail your response to that is abbott and they're privileged and they shouldn't have been looked at first start first part yeah i mean these  lawyer and they just weren't made an error of law on this oh my lord in making or a law if it's partnership material the law would suggest that either partner gets access to either partner and we produced those all those documents and my point is now that we're looking at those documents it seems to support to helpfully you give at least seven or eight the very first one speaks about a release so when your brief states there was never released that's hard for me to accept let me see is the ones i'm complaining about are the ones that i argued i mean that shouldn't have been produced in the magistrate said you have to reduce all the documents not only ones where you communicate with panic on but also also all all your internal e mails with path ok so i reduced everything and the choice to help me my my my my firm contempt if i didn't produce ago i was fighting really hard i said different lawyers hoping different lawyers might get me a different and said yes you have you have to produce them but i'm trying to the distinction i'm john make to you is yes i knew they wanted to release they don't want to pay a penny they wanted to defraud us they wanted to commit all these acts again they want to siphon the money from us i made a sixty page complaint with one hundred twenty four paragraphs it was very detailed they want to be released from all that where the payment of four hundred fifty six thousand dollars you know what you know what they should have done what it's like i say we try to do bad stuff sometimes things fall through the crack and in in this case they fell through the cracks and they never gave was the release and this is what i'm saying in so but then i go to what's next i mean so so the judge first says there's no ambiguity very well written opinion by the way and he says this is no ambiguity and there's no release by palak there 's a commitment to do something in the future and that's it good morning your honor me and matt wall for l a c and i just i'm going to start with the document that has been provided to the court this morning it was only after we saw the document going to the docket clerk and being presented on the bench that we realized we were missing something but paragraph six essential to everything that's in the breeze no one has any doubt how grab six is essential to everything and we don't have a problem w paragraphs it's all over the record yes the side letter grade you're prepared to talk about many times what i do have a problem with is the part of the document that talks about the court's initial interpretation of the green men from what the court was presented with today is where it says as and it is clear that certain types of fraud claims are excepted from the release on the other hand pay lip did receive four hundred thirty four thousand six hundred thirty six dollars referenced in paragraph six of the side letter agreement so it is clear that pay like compromised something so the court is saying on a twelve b six motion i see that something was compromised but i can't decide it at this time go do discovery parties and we did so you want your peers were i'm that there was no release and in fact in the in his aug twenty first two thousand and seventeen opinion which disposed of the remaining claims to look paley to task for repeated holding that the s l a side letter agreement does not contain a release this mischaracterizes what the court stated the court was explicit in observing that paley didn't compromise and therefore release something because after all l a l a c did not did pay and pay like i did except the four hundred thirty four thousand six hundred thirty six dollars payment describe six which brings me to my next question what is the limit of the compromise in the side letter agreement in your client's view the side letter agreement compromised everything your honor and it is clear from the language of the side letter agreement that a compromise all the claims that were brought in this litigation and judge saini so held and the language upon which i relied i'm sorry judge so do you mean including the prescription of renovation related fraud claims it doesn't compromise that as it prevents a kind of a dang galing last part prescription of renovation related fraud claims  renovation relate with asian claim first of all a partnership claim panic on was the partnership of which the parties were partners right so it's not compromised by this if it was indeed the topic and let me tell you why your honor the renovation claim is a matter that was referenced in the letters from a pay lip to l a city dated april twenty sixth on april twenty seventh and then wen accused this whole renovation issue to try to get l a see to agree to sell the hotel l a city wanted to continue to manage that hotel the parties to the management agreement were panic time in l a city so when and of course l a c thought it would be foolhardy for the partnership to pay six million dollars in renovation when the brady ad didn't know if it was going to be in or continental because the management agreement was going to expire so they put default the renovation this the april twenty seventh and april twenty sixth letter's dangles a franchise agreement says we've had people come and ask us for to sell the hotel and they're willing to do it with  franchise agreement we still wanted to manage the hall is a clear opening point prescription ones from that is the default occurred and then they withdrew it when we agreed to sell pursuant to imagine an agreement but my point here bit but it also does speak about the future tense in the sentence before the agreement with the resolution for half a million it talks about would be and how does that make sense particularly i think i mean you must know the emails very well some of them seem to contemplate future releases and the voluntary terminations agreement was simply the future release that you're referencing your honor and judge saini referred to it is august twenty first ruling the future that is the voluntary terminations rayment so you have to think about two separate agreements there is the partnership agreement which is the rights and obligations of pay like as the majority partner and l a city and separately panic on an city were parties to the management agreement so the whole reason for panic on was to build and operate a hotel that was the whole reason for the existence so once the hotels being sold everything has to be wrapped up so paragraph six of the side letter agreement the seidler agreement is between what partners the voluntary terminations agreement is between the partnership and l a see agreement which wrapped up the partnership is the excuse me the voluntary terminations agreement which wrapped up the management agreement pret proof before the sale all that happened the money was paid and  opinion he said to the extent pale it that you continue to rely on this concept that there was something that was going to happening in the future it happened you got the money you got the terminations of the management agreement so that was the consideration that was paid and let's talk about what the elements of a compromise are under louisiana law a party need only show mutual mutual intent of preventing or putting an end could have continued to manage the hotel through december thirty first twenty thirteen and possibly thereafter under a right of first refusal in addition pay late got four hundred forty six thousand dollars so the elements under civil code article thirty seventy one and thirty seventy three three thousand and seventy nine were satisfied so there was clearly a release but if there were any question about whether there this was a release we need only look at those e mails because pe lent and the lawyers refer to this thirty  times as a release they talk about the fact that is a complete relief could and could you just mention quickly what your understanding of louisiana privilege is in the context of a lawyer representing the partnership and the partner's well there was a lot of litigation over that you're on is there an easy synopsis a partnership cannot represent you cannot excuse me an attorney cannot represent another party am his ability to represent that other party would be in some way impaired by his representation of another party and here certainly the partnership's representation was impaired by the representation of paley and we took the position and also under louisiana law of course if one partner has access to partnership records the other partner gets access to and that was the basis for the abbott case that was referenced by judge knowles that was the basis there were six different motions about these e mails and of course it wasn't the lawyer who was arguing as my opponent would have the court leave pale it absolutely refused to comply with the orders of the court and on the sixth time judge knowles was pretty frustrated didn't already gone out to moving on ok and i have several questions that i want to make sure we have time to get to yes did the district court dismiss this claim or grant a summary judgment on the breach partnership agreement did quote dismiss payload was raising claims that were the claims of panic time and so the court dismissed any claims that payload raised by a pack on determining that paley did not have standing separately saini determined that there was no breach ok the next question i have had to do with the fraud in the you do spent at the side letter agreement  y didn't pay lake received the monthly statements of the intercom company charges according to the record well pale it was the sixty six and two thirds partner and pa kept the partnerships records pay lick had internal and external auditors that reviewed compliance with the management agreement so did auditors receive this monthly intercom company charges one or not one would assume that the auditors would have brought that up but in any event when jerry carlisle pale it's consultant brought up that issue about about ellie's about the intercompany charges that were charged to the partnership and it's important to note that that's a panic on the issue that the partnership had been in charge certain disputed or interim video charges things like that so there were various charges to panick com that had been in vision at the time that the management agreement had been executed so that's why they had to assemble a team and figure out if this management agreement we're being confected today is this something that we would have charged the partnership who knows the whole you know and it took them three months to live their argument is then two business days before the agreement you say to them here's what we came up with that is their argument and so they so paley allege there was some over two million dollars in in our company charges going all the way back thirteen years ok so we had to look at thirteen years worth of data and interpret what what some of this old stuff would have been under a new agreement and i'm not sure i think that that that actually the record will be flagged that there was a discussion in december and a powerpoint presentation december where the findings were disclosed to paling and yes because it was a grey area and that l a c offered to provide all the backup data that paley may want we know that because mr carlisle made what he said were contemporaneous notes of a there that that pale it was being asked to release because in those allegedly contemporaneous notes mr carlyle says i asked joell jol are you saying you won't sell the hotel until unless we execute this release this makes me a little nervous because i don't know what we're releasing and that mr eisman joel osment allegedly said yes that's right and then mr carlyle sad i don't like it but we're going to we're not going to jeopardize the sale of the hotel so he had the opera day had the opportunity and no one asked so they would have had to stop the thing they could have delayed the sale of the hotel they could have gotten on a plane or asked the documents i asked in the deposition did you ask anybody to email you the underlying data no did you ask anybody to pay even provide it and they said we don't need all that it's not worth our time we're not going to sue you all this is in the record found money for pay like and if you look at those e mails back and forth they weren't expecting six hundred they weren't expecting four hundred forty six thousand dollars they fully expected that they would get some money they had  idea how much but they were high five ing over the fact that they were getting this four hundred forty six thousand dollars so i'm not relying on the principle of louisiana law that says there's no fraud in the i there's no reliance on representation or alleged misrepresentation because they wanted to just go forward with this right i'm going to tell him if they want to go forward anyway not that they could have easily discovered you're not saying they could have easily discovered something that took months to do well that's right i mean they could have but if they wanted to go forward with the sale of the hotel they want relying on it anyway but there's another reason charge all right that there's no fraud  c e o of paley in his deposition do you have any facts to suggest and he said no i asked the chief investment officer in his deposition all of this is in the record he was in charge of the hotel before mr carlyle stepped in and are you saying that there was fraud mr revelle took no i am not so there are admissions in the record that even pay pay lick did not think that there was any fraud fraud has been part of the litigation narrative that was basically as john the seine put it and he put it right there in his august twenty first  twenty seventeen ruling paling has used this litigation to seek the indication over numerous points of disagreement between pay like in that way see during the course of their years long relationship that's with this case is all about this case should never have been brought because of the side letter agreement ok can i ask so to resolve this case if if hypothetically you know it seeming argue window that we were to conclude that this was not in big us and that therefore there was no pill evidence comes in then we don't have to get into whether or not there would be confidentiality that was overcome improperly then then we resolved fraud in the inducement on the prescriptive period of july two thousand and thirteen in the in its run and so then you don't need the documents to say they would have gone through anyway for that one either right why do you need the documents if they were going to go through come you know come high water or whatever and a doubt the documents don't need the doctor there is a complete in addition to prescription in addition to the side letter agreement before i read this let me just say one thing there were hundreds of hours of fact we didn't we don't anything and we were ready to try this case and win this case i'm just asking one thing if you give an exhibit to the while we're talking about this document it is not appropriate to give a document to the court without showing it to the opposing counsel before that time period just as you would not be allowed to do that in trial you certainly cannot do it in fact we're supposed to be relying upon the record here in the case already but even if you have some extra document that you believe comports with the record you are required to show it to opposing judgment what are your most important point you make your point were important point is there are multiple issues of fact and those are to be decided by the jury not to be decided by the judge and you know on and then judge zany in his summary judgment finish by saying he says i can clean up this whole case will be privileged documents not not to panic on documents that privileged documents from poll release but he refers to the emails in global that were produced he says those those follow her privileged e mails those and use them to solve any ambiguity is and resolve all issues and you know what i don't think anybody's really read those emails to urge a court to read those e mails and you'll see there are simply advice judge found that indirect doesn't mean in direct and that we could so we have eight hotels competing with us and in and new orleans and in violation of the partnership agreement we seek this case