Robert J. Blackwell v. Ronald U. Lurie ( 1998 )


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  •    United States Bankruptcy Appellate Panel
    FOR THE EIGHTH CIRCUIT
    No. 97-6091EMSL
    In re:                                       *
    *
    Popkin & Stern,                              *
    *
    Debtor.                               *
    *      Appeal       from      the     United
    States
    Robert J. Blackwell, Liquidating
    * Trustee
    Bankruptcy Court for the
    of the Popkin & Stern Liquidating
    *   Trust
    Eastern District of Missouri
    *
    Plaintiff-Appellee,      *       [UNPUBLISHED]
    *
    v.                  *
    *
    Ronald U. Lurie,              *
    *
    Defendant-Appellant.     *
    Submitted: January 12, 1998
    Filed: March 5, 1998
    Before KRESSEL, William A. HILL, and SCOTT, Bankruptcy Judges.
    KRESSEL, Bankruptcy Judge.
    Ronald U. Lurie appeals from the bankruptcy court’s1 order
    reviving the plaintiff’s
    1
    The Honorable Karen M. See, United States Bankruptcy Judge for the Western District
    of Missouri, sitting by designation.
    judgment against him. Because we agree with the bankruptcy
    court that nothing in the settlement agreement between the
    parties constituted a release or a satisfaction of that
    judgment, we affirm.
    BACKGROUND
    This dispute goes back to the bankruptcy case of Popkin &
    Stern, a St. Louis law firm of which Lurie was a partner.
    Originally commenced on March 26, 1992, by an involuntary
    petition, Popkin & Stern converted the case to a case under
    chapter 11 and Blackwell was subsequently appointed the
    trustee. On August 27, 1993, the bankruptcy court confirmed
    a plan proposed by Popkin & Stern. That plan provided for the
    creation of a liquidating trust to collect Popkin & Stern’s
    assets and distribute them to creditors pursuant to the terms
    of the plan. The plan provided that Blackwell would be the
    trustee of the liquidating trust.
    As part of his duties as the liquidating trustee,
    Blackwell sued Lurie and on October 20, 1994, the bankruptcy
    court entered a judgment in favor of Blackwell and against
    Lurie in the amount of $1,121,743.00.     Blackwell commenced
    another adversary proceeding against Lurie and his two adult
    children, Michael Lurie and Ryan Lurie, and a third adversary
    proceeding against Lurie’s wife, Nancy F. Lurie.
    During 1995, Blackwell, Lurie, Nancy Lurie, Michael Lurie,
    and Ryan Lurie came to a settlement of the two pending
    adversary proceedings and the judgment against Lurie. It is
    that global settlement agreement dated September 13, 1995,
    which is the centerpiece of the dispute between the parties to
    this appeal. The global settlement agreement provided that on
    the 30th day after the date upon which the approval order of
    the bankruptcy court was entered, there would be a closing at
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    which there would be a transfer of property and execution of
    all documents.   On October 19, 1995, the bankruptcy court
    approved the agreement.
    However, it wasn’t long before the parties were back in
    court and on November 21, 1995, the bankruptcy court extended
    the closing date so that it would occur no later than December
    29 and tentatively set December 20, 1995, as the closing date.
    However, on
    3
    December 15, 1995, a hearing was held at which the bankruptcy
    court took testimony, received other evidence and subsequently
    made detailed findings of fact and conclusions of law on the
    record and in a written order dated January 18, 1996. While
    extremely lengthy and detailed, the thrust of the opinion is
    that Lurie and his wife Nancy Lurie could not close the global
    settlement agreement. In fact, there never was a closing.
    Under Missouri law, judgment liens survive for only three
    years. Mo. Rev. Stat. § 511.360. Therefore, on September 26,
    1997, Blackwell filed a motion for revival of judgment. The
    bankruptcy court scheduled a hearing and entered an order to
    show cause setting a hearing for October 20, 1997. Lurie filed
    a response to the motion on October 14, 1997, and a
    supplemental memorandum on October 20, 1997, but did not
    personally appear at the hearing.2
    The court held a hearing on Blackwell’s motion on October
    20, 1997,3 and on October 23, 1997, entered an order for
    revival of judgment. It is from this order that Lurie appeals.
    DISCUSSION
    2
    Neither the response nor the supplement memorandum have been made part of the
    record on this appeal. In fact, the appellant has not filed any sort of designation of record or
    provided the court with any record other than transcripts of hearings held on December 15, 1995,
    and April 16, 1996. His only attempt to create a record seems to be the attachment to his reply
    brief of an affidavit of Richard F. Huck, III, dated February 10, 1997--obviously, post-hearing
    evidence which is not part of the record on appeal.
    3
    In his brief, Lurie complains in passing about the fact that the bankruptcy judge
    conducted the hearing by telephone from Kansas City. But, as part of the statement of issues
    recited in his memorandum, he does not make an issue out of the way that the hearing was
    conducted. Lurie had the opportunity to file two written responses to the motion which the
    bankruptcy court considered before entering its order.
    4
    While Lurie’s arguments are lengthy and sometimes
    convoluted, they can be distilled to one point. In spite of
    the fact that he was unable to perform and did not perform his
    obligations under the global settlement agreement, he claims
    that the settlement agreement,
    5
    releases him from any liability on the judgment. Paragraph V
    of the global settlement agreement provides for mutual releases
    among the parties “as of the Closing Date.” Since the closing
    date is set in the agreement as being 30 days after court
    approval and that date has come and gone, Lurie argues that the
    release is effective notwithstanding that no closing was ever
    held and, in fact, the bankruptcy court found that Lurie was
    unable to perform his obligations under the agreement which
    would enable a closing to be held.
    However, the final paragraph of section V explicitly
    provides that “the releases, and hold harmless provisions of
    this paragraph V. . .shall become automatically effective and
    enforceable without further action at the time of the Closing.”
    And, in fact, a careful review of the global settlement
    agreement reveals that the parties’ obligations are all tied
    to the actual closing, not a hypothetical closing date. The
    setting of the closing date is intended to be an indication of
    an obligation to close on or within a certain time, but has no
    independent effect of its own. Since Lurie never performed his
    obligations under the global settlement agreement, he cannot
    claim the benefit of the bargained-for release. See, Williams
    v. AgriBank, FCB, 
    972 F.2d 962
    , 967 (8th Cir. 1992) (“When one
    party to a settlement agreement refuses to comply with its
    terms, the other party can abandon the settlement and proceed
    on the original cause of action.”) Campbell v. Shaw, 
    947 S.W.2d 128
    , 131 (Mo. Ct. App. 1997) (“When a party fails to perform
    according to the terms of a contract, it must be determined
    whether the breach is material. If the breach is material or
    if the breaching party’s performance is a condition to the
    aggrieved party’s performance, the aggrieved party may cancel
    the contract.”) McKnight v. Midwest Eye Institute of Kansas
    City, Inc., 
    799 S.W.2d 909
    , 915 (Mo. Ct. App. 1990) (“The
    judgment gave effect to the principle that a material failure
    of one party to give performance gives the other party the
    6
    right to repudiate the contract.” Quoting Boten v. Brecklein,
    
    452 S.W.2d 86
    , 92 (Mo.1970). “It gives effect also to the
    cognate principle that a party who is the first to violate the
    contract by failure to give material performance may not claim
    its benefits.”)
    CONCLUSION
    We simply cannot agree with Lurie that he is entitled to
    the benefit of the release even though no closing was held and
    he did not perform and was unable to perform his obligations
    7
    under the global settlement agreement. We therefore affirm the
    bankruptcy court’s judgment and order of revival of judgment
    dated October 21, 1997, and entered October 23, 1997.
    A true copy.
    Attest:
    CLERK, U.S. BANKRUPTCY APPELLATE PANEL FOR THE
    EIGHTH CIRCUIT.
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