307 So.3d 218
La. Ct. App.2020Background
- Caillou Island Towing (Caillou) contracted Premier Tugs (Premier) to perform three tug jobs that Caillou could not complete itself; Caillou did not disclose the ultimate customers to Premier.
- Premier performed the jobs and invoiced Caillou a total of $70,855.00 (one invoice for $6,355 and two for $32,250 each). Caillou billed its customers and added a 10% brokerage fee.
- One customer (Galveston Bay Energy) later filed bankruptcy and the other (James Whitson, Jr.) died; Caillou did not remit payment to Premier.
- Premier sued Caillou under Louisiana's open account statute seeking the invoice amounts and statutory attorney's fees; Caillou counterclaimed and argued industry custom made it only a broker and not liable.
- The trial court found an oral contract existed (rental of Premier’s services to Caillou), held Caillou liable on an open account for $70,855.00, and awarded $11,000.00 in attorney's fees; Caillou appealed and the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence and nature of contract (rental vs. broker/suretyship) | Premier: oral contract existed for rental of Premier's services to Caillou; Premier performed and invoiced Caillou. | Caillou: arrangement was merely brokering; at best an unenforceable suretyship or conduit; Caillou not liable if customer insolvent/deceased. | Affirmed: trial court reasonably found an oral contract for rental of services, not an unenforceable suretyship. |
| Open account status | Premier: invoiced Caillou and extended credit; open account statute applies to unpaid balance. | Caillou: Premier extended credit to customers, not Caillou; no open account between the parties. | Affirmed: facts show recurring dealings and credit to Caillou; an open account existed. |
| Entitlement to statutory attorney's fees | Premier: sent written demand (Feb 27, 2017) and waited >30 days before suit; entitled to fees under La. R.S. 9:2781. | Caillou: no admissible written demand evidenced to trigger the 30-day period. | Affirmed: written demand was admitted at trial and suit was filed after 30 days; attorney's fees awarded were proper. |
Key Cases Cited
- Southern States Masonry, Inc. v. J.A. Jones Const. Co., 507 So. 2d 198 (La. 1987) (pay-when-paid clauses are payment terms that delay payment, not suspensive conditions)
- Rosell v. ESCO, 549 So. 2d 840 (La. 1989) (appellate review of factual findings governed by manifest-error / clearly-wrong standard)
- Stobart v. State through Dept. of Transp. and Development, 617 So. 2d 880 (La. 1993) (two-part test for reversing factfinder: no reasonable factual basis and clearly wrong)
- Suire v. Lafayette City-Parish Consolidated Government, 907 So. 2d 37 (La. 2005) (requirements for proving unwritten contracts and use of corroborating circumstances)