Law Offices of Fred L. Herman, APLC v. Helmer
128 So. 3d 310
La. Ct. App.2013Background
- Helmer sued for attorney fees incurred in representing Mrs. Helmer in her husband’s succession.
- Plaintiffs sought $363,059.72, including fees and some costs, via a suit on open account filed February 24, 2011.
- Summary judgment awarded plaintiffs $363,059.72 on April 3, 2012; new trial motion denied July 18, 2012.
- While appeal of the underlying judgment was pending, plaintiffs obtained a separate ruling fixing attorney fees for collection at 25% of $363,059.72 ($90,764.93) plus $1,158.50 costs on November 15, 2012.
- Helmer appeals the fee award; issues include jurisdiction, prematurity, and whether summary judgment on the fee was appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction of the trial court during appeal | Helmer contends Article 2088 divested trial court of power on fees. | Helmer asserts trial court lost jurisdiction over fee issue while underlying judgment appealed. | Trial court retained jurisdiction; Article 1915(C) controls remaining issues during appeal. |
| Prematurity of fee determination while underlying judgment on appeal | Fees prematurity because underlying judgment amount not final. | Fees for collection may be set despite appeal of underlying judgment. | Not premature; trial court could determine fees while appeal of underlying judgment continued. |
| Whether summary judgment on attorney fees was appropriate | Court should grant summary judgment based on undisputed facts supporting a fee. | Issues remained regarding underlying judgment; not proper to rely on summary procedure here. | Not reversible error; the proceeding is not a summary judgment on the underlying dispute, and the trial court’s fee ruling was within discretion. |
Key Cases Cited
- Dufrene v. Gautreau Family, LLC, 980 So.2d 68 (La.App. 5 Cir. 2008) (trial court retains jurisdiction over matters not reviewable on appeal; enumerated list not exclusive)
- Brandner v. Staf-Rath, L.L.C., 102 So.3d 186 (La.App. 5 Cir. 2012) (trial court retains jurisdiction to determine attorney fees while underlying judgment on appeal)
- Metropolitan Reporters, Inc. v. Avery, 665 So.2d 547 (La.App. 5 Cir. 1995) (factors for determining reasonable attorney fees; abuse of discretion standard)