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Bistricer v. Bistricer

Decided: November 14, 1987.

HERMAN BISTRICER, TOWER INVESTMENTS OF MIAMI, INC., AND RHINE INVESTMENTS, N.V., PLAINTIFFS,
v.
MOISHE BISTRICER, DAVID BISTRICER, BISTRICER GROUP, BIST MANAGEMENT CORP. AND DORIC REALTY CO., DEFENDANTS



Humphreys, A.j.s.c.

Humphreys

This case is a complex, inter-family struggle over the ownership and profits of Doric, a valuable apartment house complex.*fn1 The complex is being converted to condominiums. Defendant David Bistricer is the managing partner; plaintiff Herman Bistricer is a limited partner.

Resolved in this opinion is whether the parties settled the case at a settlement conference with the court. At issue is the validity of a "settlement" placed on the record and later to be "fleshed out" in writing. The parties cannot agree on the writing.

Plaintiffs contend that the case was not settled at the settlement conference. They argue that the "settlement" was subject to the drafting and signing of a written settlement agreement. A written agreement was prepared which embodied the basic terms agreed upon at the settlement conference. Plaintiffs

however raised numerous objections to the written agreement.

After careful consideration the court finds as follows. The parties agreed on the essential terms of a settlement of this litigation. These terms are sufficiently clear for the settlement to be implemented fairly. Plaintiffs' objections to the written agreement either amount to the raising of new terms not previously agreed upon by the parties, or are matters relating to how the settlement should be implemented. In neither case should the settlement reached by the parties be disturbed.

The settlement is valid and will be implemented in a fair and reasonable manner under the court's supervision. The court's reasons for these findings are as follows.

I.

Plaintiffs started this chancery suit in January 1986 alleging that defendants had refused to accord plaintiffs rightful majority status, failed to pay plaintiffs monies owed, failed to disclose financial information and violated fiduciary duties to plaintiffs and Doric.

Plaintiffs sought orders confirming their alleged majority ownership of Doric; enjoining defendants from transferring or selling any interest, title or right in Doric; appointing a temporary receiver; confirming plaintiffs alleged right to manage Doric; removing defendants as general partners of Doric; compelling defendants to pay monies allegedly owed; compelling an accounting; and appointing an auditor.

The case was assigned to this court for a settlement conference. On July 9, 1987 this Court conducted a lengthy settlement conference. Counsel and the court conferred in chambers. The principals were in the courtroom and from time to time counsel would confer with them.

At the settlement conference the court perceived the issues to fall within four categories: (1) what was the financial interest each party had in Doric; (2) what commissions should defendant

managing partner receive for sale of the condominiums; (3) how to: (a) ascertain whether defendants had properly managed Doric; and (b) determine and credit the nonmanaging partner with any monetary adjustments properly due; and (c) protect the nonmanaging partner during continuance of the business.

Based on those principles, the parties, with the aid of the court, reached the following agreement late in the evening of July 9, 1987.

(1) The partnership interests would be divided 40.5% to plaintiffs and 59.5% to defendants.

(2) Defendant David Bistricer would receive a 5% commission on condominium sales and a 5% management fee. Commissions ...


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