161 So. 3d 48
La. Ct. App.2015Background
- In 2007 Schiff and Pollard entered a handwritten "napkin" agreement: Schiff would fund purchase/renovation of New Orleans houses (initially $200,000); Pollard would locate and supervise work; profits to be split 50/50 upon sale. 12 properties were acquired (in Schiff’s name) and renovated through 2009.
- Early in the venture Schiff unilaterally shifted strategy from flipping to renting; Pollard protested, often fronted or borrowed money for repairs and supplies, and was not promptly reimbursed.
- In July 2009 Schiff provided a typewritten partnership agreement that he drafted; it included language permitting rentals and stated it replaced the napkin agreement. Pollard signed it but disputed that it reflected the original bargain.
- By September 2009 Schiff stopped funding operations; the parties terminated the arrangement, Pollard obtained CMAs valuing the portfolio at about $2.9M, and a later 2013 appraisal valued the properties around $2.3M as of 2009.
- Pollard sued (2010) seeking 50% of profits (including from a 2010 Filmore sale), reimbursement of expenses, an accounting, and damages for Schiff’s bad-faith conduct. The trial court entered judgment for Pollard; Schiff appealed and sought post‑trial relief (including new trial); the appellate court amended interest treatment and affirmed as amended.
Issues
| Issue | Pollard's Argument | Schiff's Argument | Held |
|---|---|---|---|
| Which contract governs breach (2007 napkin v. 2009 typed agreement) | Napkin agreement reflected parties’ original partnership; Pollard never agreed to rentals; Schiff breached from inception | 2009 typed agreement superseded/replace the napkin and authorized renting, so no breach for renting | Court relied on credibility findings and enforced the 2007 agreement; any ambiguity construed against drafter (Schiff); also found breach of 2009 because Schiff never intended a true partnership |
| Valuation of properties (CMAs v. later appraisals) | CMAs prepared in 2009 reflect market value at time of dissolution and were accepted by Schiff in settlement correspondence | Certified appraisals (2013) are more reliable and should control | Trial court permissibly relied on 2009 CMAs; appellate court found no manifest error or abuse of discretion in preferring CMAs over 2013 appraisals |
| Accounting and reimbursable expenses (amounts claimed by Pollard) | Pollard produced invoices, receipts, testimony showing she paid and sought reimbursement; Corcoran CPA accounting relied upon by court | Schiff attacked accounting as incomplete (missing Regions account) and challenged undocumented/credit‑card charges | Trial court credited Pollard’s accounting; appellate court upheld it, deducting only $351.79 for unsupported items |
| Exclusion of evidence / new trial for newly discovered evidence (bank records, voicemail) | Voicemail and bank documents do not negate Pollard’s claims or the court’s credibility findings; evidence was known or producible earlier | Excluded voicemail and newly produced bank records show Pollard lied and justify new trial | Court acted within discretion to exclude voicemail as irrelevant and deny new trial; Schiff failed affidavit requirement for newly discovered evidence and court found no abuse of discretion |
Key Cases Cited
- Rosell v. ESCO, 549 So.2d 840 (La. 1989) (standard for manifest error review of factual findings)
- Mart v. Hill, 505 So.2d 1120 (La. 1987) (two‑part test for appellate reversal of factfinder)
- Syrie v. Schilhab, 693 So.2d 1173 (La. 1997) (appellate review focuses on whether factfinder reached a reasonable conclusion)
- U.S. Abatement Corp. v. Mobil Exploration & Producing U.S., 79 F.3d 393 (5th Cir. 1996) (ambiguous contract terms construed against drafter)
- Bellard v. American Central Ins. Co., 980 So.2d 654 (La. 2008) (trier of fact may accept/reject expert opinion and substitute its judgment)
- Katner v. Katner, 28 So.3d 566 (La. App. 4th Cir. 2009) (valuation is a factual finding; court may prefer appraiser or broker opinions)
- Cajun Elec. Power Coop. v. Owens‑Corning Fiberglass Corp., 616 So.2d 645 (La. 1993) (interest on expert witness fees assessed as costs accrues from date of judgment)