Seale & Ross, P.L.C. v. Nedra HolderSeale & Ross, P.L.C. v. Nedra Holder
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 1487
SEALE & ROSS, P.L.C.
VERSUS
NEDRA HOLDER
Judgment Rendered: AUG 03 2020
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On Appeal from the
Twenty-First Judicial District Court
In and for the Parish of Tangipahoa
State of Louisiana
Trial Court No. 2018-1261
The Honorable William J. Burris, Judge pro tempore Presiding
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David S. Moyer
Luling, Louisiana
Attorney for Defendant/Appellant,
Nedra Holder
Glen R. Galbraith
Hammond, Louisiana
Attorney for Plaintiff/Appellee,
Seale & Ross, P.L.C.
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BEFORE: WHIPPLE, C.J., GUIDRY, AND PENZATO, JJ.
Appellant, Nedra Holder, appeals a trial court judgment rendered in favor of appellee, Seale & Ross, P.L.C., (Seale & Ross) following a bench trial.1 For the reasons that follow, we affirm the judgment.
FACTS AND PROCEDURAL HISTORY
Seale & Ross, a law firm, filed suit on open account in accordance with
A trial was held in this matter on June 10, 2019. Dillon testified at the trial that she was a partner at Seale & Ross, and in connection with her employment, she represented Holder in her domestic matter. Dillon stated that she had sent two retainer agreements to Holder, but neither was returned signed. Therefore, she operated under her normal billing practices. Her agreement with Holder was for an hourly basis ongoing. Dillon denied that she told Holder the legal fees would not exceed $25,000.00.
Holder testified, admitting that she hired Dillon as her attorney and that she was billed monthly as the services were rendered. Holder further testified that at their initial meeting, Dillon orally informed her that the cost of the legal services would be $20,000.00 to $25,000.00. Holder also testified that at some point Dillon told her to pay only the minimum amount due on the monthly bills because Dillon was going “to write most of it off.” She explained that she had been paying between $1,000.00 and $3,000.00 a month, but then began paying only $100.00 a month. Holder further testified that she never signed a contract or loan agreement with Dillon and did not agree to pay any interest.
Dillon admitted that she had a conversation with Holder regarding Holder‘s financial situation. She informed Holder that the bill did not have to be paid in full each month, but at the end of the case they would discuss payment in full when the community property matter was settled. Dillon expected that Holder would receive a house with no mortgage, some retirement benefits, and some liquid funds at the conclusion of the community property settlement. Dillon denied that she agreed to “write off” any amount of legal services.
At the completion of the trial, the trial court allowed Holder thirty days to submit a post-trial memorandum detailing any objection to specific charges contained on Exhibit 1, the invoices of Seale & Ross. Dillon was given thirty days thereafter to respond to Holder‘s memorandum. However, prior to either of these deadlines, on June 28, 2019, Judge Hughes issued written reasons for judgment finding that Seale & Ross was entitled to $30,000.00 in attorney‘s fees together with legal interest and additional attorney‘s fees pursuant to
ASSIGNMENTS OF ERROR
Holder alleges that the trial court erred in: (1) not considering her post-trial memorandum; (2) determining that Seale & Ross was entitled to collect attorney‘s fees and costs based upon an oral agreement; (3)
LAW AND DISCUSSION
Existence of Oral Contract
We first address Holder‘s second assignment of error that the trial court erred in determining that Seale & Ross was entitled to collect their attorney‘s fees based upon an oral agreement. Seale & Ross sought attorney‘s fees based on an open account. An open account is a legal term of art, and in the normal course of business, an open account is analogous to a credit account. Roofing Products & Building Supply Co., LLC v. Mechwart, 2013-1506 (La. App. 1st Cir. 5/2/14), 2014 WL 2711793, at *3 (unpublished). For there to be an action on an open account, there must necessarily be a contract which gave rise to that debt. Id. A creditor suing on an open account must prove that the debtor contracted for the sales on open account. Id.
In an action on an open account, a plaintiff bears the burden of proving his demand by a preponderance of the evidence. Action Oilfield Services., Inc. v. Energy Management Co., 2018-1146 (La. App. 1st Cir. 4/17/19), 276 So. 3d 538, 542. The plaintiff must first prove the account by showing that it was kept in the course of business and by introducing supporting testimony as to its accuracy. Id. Once the plaintiff has established a prima facie case, the burden shifts to the debtor to prove the inaccuracy of the account or to prove that the debtor is entitled to certain credits. Id. The amount due on an account is a question of fact that may not be disturbed absent manifest error. Aurora Casket Co. v. Hall Davis & Sons Funeral Services, Ltd., 2010-0115 (La. App. 1st Cir. 6/11/10), 2010 WL 2342832, at *2 (unpublished) (citing Deutsch, Kerrigan & Stiles v. Fagan, 1995-0811 (La. App. 1st Cir. 12/15/95), 665 So. 2d 1316, 1320, writ denied, 1996-0194 (La. 3/15/96), 669 So. 2d 418; Jacobs Chiropractic Clinic v. Holloway, 589 So. 2d 31, 34 (La. App. 1st Cir. 1991)).
At trial, Dillon testified that she represented Holder in the domestic matter and that her agreement was an hourly basis ongoing. Holder admitted that she hired Dillon as her attorney and was billed monthly as the services were rendered. The bills were introduced at the trial and marked as Exhibit 1. Dillon confirmed in her testimony that Holder did owe the bills reflected therein and that all charges were legitimate charges related to Holder‘s case.
When claiming the existence of an oral contract for the payment of money above $500.00 in value, the party must prove the existence and terms of the contract by at least one credible witness and other corroborating circumstances.
Holder asserts that Seale & Ross did not prove the existence of an oral contract pursuant to
Holder relies upon Regel L. Bisso, L.L.C. v. Stortz, 2011-25 (La. App. 5th Cir. 10/25/11), 77 So. 3d 1033, 1036, for the proposition that evidence in the form of testimony from a member of a law firm, billing statements, and demand letters is insufficient to prove the existence of an oral contract. However, we recognize that in Stortz, all of the evidence to establish the oral contract came from the plaintiff law firm and there was no corroborating evidence of an oral contract. In the present case, the existence of an oral contract between Holder and Seale & Ross for legal services regarding the domestic matter is not in dispute. Dillon testified as to the existence of an oral contract for legal services. The corroborating circumstances of the oral contract came from a source other than Seale & Ross, as Holder provided the testimony admitting that she hired Dillon to perform legal work; that she received monthly bills for that work; and that she paid some of those bills. The dispute at issue pertains to the inclusion of a provision limiting the attorney‘s fees to $25,000.00 as asserted by Holder.
When factual findings are based on determinations regarding witness credibility, the manifest error/clearly wrong standard of review demands great deference to the trier of fact‘s findings. ES v. Thomas, 2017-1213 (La. App. 1st Cir. 5/31/19), 278 So. 3d 982, 989. Moreover, as the trier of fact, the trial court was entitled to accept or reject, in whole or in part, the testimony of any witness. Id. Herein, Holder testified that the oral fee contract was limited to no more than $25,000.00. Dillon testified that she made no such agreement and detailed the complicated nature of the domestic matter. Dillon further testified that her forbearance of payment of the monthly bills in full was based upon her expectation that Holder would receive a house and funds in settlement, which Holder did in fact receive. As the trial court was free to accept or reject the testimony of any witness and make credibility determinations, we find no manifest error on the part of the trial
Contractual and Legal Interest
Holder argues that the trial court erred in awarding Seale & Ross contractual interest when there existed no written agreement and that only legal interest was allowable.
In the present case, the reasons for judgment issued by Judge Hughes are silent as to an award for contractual interest. Rather, they specifically provide that “Plaintiff is entitled to the amount of $30,000.00 for reasonable attorney‘s fees incurred by Defendant Holder together with legal interest.” (Emphasis added). Furthermore, the August 13, 2019 judgment awarded Seale & Ross $30,000.00 plus legal interest from the date of judicial demand, without mention of contractual interest. Generally, silence in a judgment of the trial court as to any issue, claim, or demand placed before the court is deemed a rejection of the claim and the relief sought is presumed to be denied. Matter of Cole, 2019-0938 (La. App. 1st Cir. 12/27/19), 293 So. 3d 1163, 1168, n.3, writ denied sub nom. In Matter of Mental Health of Derrick Cole, 2020-00184 (La. 5/9/20), ___ So. 3d ___; Unisys Corp. v. Louisiana Office of Motor Vehicles Through Hodges, 2018-0556 (La. App. 1st Cir. 12/28/18), 270 So. 3d 637, 654. The claim for contractual interest was before the trial court, as it was asserted in the petition filed by Seale & Ross. The trial court‘s silence in the reasons and corresponding judgment as to contractual interest was a denial of that claim. We, therefore, find that Seale & Ross was not awarded contractual interest by the trial court, and thus, this assignment of error lacks merit.
Reasonableness and Relationship of Attorney‘s Fees
Holder‘s fourth assignment of error is that the attorney‘s fees billed by Seale & Ross are unreasonable under the circumstances. It is well recognized that the Louisiana Supreme Court has full and exclusive authority to regulate all aspects of the practice of law, including the attorney-client relationship. Whitney Bank v. NOGG, L.L.C., 2015-1399 (La. App. 1st Cir. 6/3/16), 194 So. 3d 819, 823. Further, “[c]ourts are vested with the responsibility of both monitoring and analyzing the attorney-client relationship, even when it is based on a written contract between the parties.” Id. (quoting In re Interdiction of DeMarco, 2009-1791 (La. App. 1st Cir. 4/7/10), 38 So. 3d 417, 427). Part of any attorney-client relationship is the fee the attorney may charge the client for professional services. Whitney Bank, 194 So. 3d at 823. Any court-ordered reduction in an attorney‘s fee must rest upon a factual finding that the excessive fee amount was never earned. Id. Absent a showing that the fee charged was clearly excessive, a contractual relationship between an attorney and client should not be altered. Id. at 823-24. Specifically, unless the attorney-client contract produces an excessive, unearned, or incommensurate fee when measured by the factors in
The Louisiana Supreme Court has set forth ten factors to be considered in determining the reasonableness of attorney‘s fees: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) the amount of money involved; (5) the extent and character of the work performed; (6) the legal knowledge, attainment, and skill of the attorneys; (7) the number of appearances made; (8) the intricacies of the facts involved; (9) the diligence and skill of counsel; and (10) the court‘s own knowledge. Id. (citing
Holder argues that the attorney‘s fees charged by Seale & Ross were excessive and unreasonable. Holder claims that Seale & Ross prepared a “Settlement Spreadsheet“, which was not introduced into evidence in the domestic matter and that much of the work on the spreadsheet was excessive, duplicative, unnecessary, and unreasonable. This court is unable to determine the contents of the “Settlement Spreadsheet” and whether the work was excessive, duplicative, unnecessary, and unreasonable since it was not entered into evidence in the instant proceeding. Furthermore, there was no testimony or any other evidence provided by Holder regarding the “Settlement Spreadsheet.” This court has no authority to consider on appeal facts referenced in appellate briefs, or in exhibits attached thereto, if those facts are not in the record on appeal. Matter of Robinson, 2018-0445 (La. App. 1st Cir. 2/6/20), 2020 WL 605164, *2 n.8 (unpublished). As such, the exhibit is not part of the appellate record and is not properly before this court on appeal.
Holder also claims that the attorney‘s fees are excessive because Seale & Ross billed the amount of $3,527.90 solely because it failed to respond to discovery requests on a timely basis. A review of the dates, time billed, and amounts billed submitted by Holder in brief compared to the pertinent invoices does not provide evidence that the billing was credited with an untimely response to discovery or inactivity on the part of Dillon. Additionally, Holder presented no testimony or other evidence at trial that Seale & Ross inappropriately billed in connection with discovery responses.
Holder further claims that Dillon insisted that she pursue a contempt action against her ex-husband that was unsuccessful and resulted in attorney‘s fees and costs in the amount of $5,041.82. Again, there is no evidence in the record before us that Holder did not wish to pursue a contempt action or of Dillon informing Holder that she would not be charged
There appears to have been no finding by the trial court that the fees were clearly excessive. Further, Seale & Ross offered the testimony of Dillon as to the reasonableness of the attorney‘s fees charged. Dillon explained that the case was very complicated and took a significant amount of time to complete involving multiple court appearances. Dillon testified that the parties had multiple separate funds and bank accounts that required tracing to determine reimbursement claims. Furthermore, the ex-husband was very contentious, which required the filing of several rules for contempt. Holder‘s ex-husband changed counsel during the course of the litigation and also appeared pro se at times. We find no evidence that the trial court erred in finding the attorney‘s fees charged were not clearly excessive and were reasonable based on the record.
Holder further asserts in her fifth assignment of error that the trial court erred by allowing Seale & Ross to charge attorney‘s fees related to a restraining order and criminal charges pursued by Dillon against Holder‘s ex-husband. Holder claims that these were “personal issues” and not in furtherance of her domestic matter.
Holder offered no testimony at trial regarding the restraining order or criminal charges against her ex-husband. The only testimony presented at trial came from Dillon, who testified that the ex-husband was very contentious; rules for contempt had to be filed; he was jailed for contempt; and he was arrested for stalking Dillon. Dillon testified that all the charges reflected on the invoice were legitimate charges relating to Holder‘s domestic matter, and that the matter was difficult due to Holder‘s ex-husband. Holder never cross-examined Dillon regarding the attorney‘s fees related to a restraining order or criminal charges against the ex-husband. But for Dillon‘s representation of Holder, there is no evidence that Dillon would have had any interaction with Holder‘s ex-husband. Furthermore, there was no proof offered that Dillon provoked his actions.
The one who asserts a fact bears the burden of proving that fact; therefore, the burden of proving the reasonableness of the fees charged is on the attorney claiming fees are owed. Gold, Weems, 947 So. 2d at 842. Once an attorney proves to the trial court‘s satisfaction that the amount claimed due is actually owed, the burden of proof shifts to the client to prove that the fees are clearly excessive. Id.
Of course, just because particular evidence is admissible does not mean that it will be persuasive to the finder of fact or that it is sufficient to support some particular factual finding. But, in the present case it is obvious that the trial court did find the billing statements persuasive. The issues of the work done and the amounts owed are ones of fact and we may not set aside the trial court‘s factual determinations unless they are “clearly wrong” or “manifestly erroneous.” (Emphasis added).
Id. (quoting Fawer, Brian, Hardy & Zatzkis v. Howes, 93-2076 (La. App. 5th Cir. 6/15/94), 639 So. 2d 329, 332, writ denied, 94-1893 (La. 10/28/94), 644 So. 2d 653). An appellate court must use the “clearly wrong” or “manifestly erroneous” standard of review in considering a trial court‘s factual findings relating to the reasonableness of a contractual attorney fee. Whitney Bank, 194 So. 3d at 824.
Finally, Holder argues that she actually overpaid attorney‘s fees to Seale & Ross because she paid a total of $27,969.54 to the firm. This argument also pertains to the reasonableness of the attorney‘s fees charged in the domestic action. As we have already found that the trial court did not abuse its discretion in awarding Seale & Ross an additional $30,000.00, an amount less than claimed, we need not address Holder‘s final argument pertaining to calculations.
Post-Trial Memorandum
Holder‘s first assignment of error is that the trial court erred in issuing the written reasons for judgment prior to the expiration of the thirty days that she was provided by the trial court to file a post-trial memorandum. A post-trial memorandum consists only of argument, not evidence. “Even if the trial judge had not seen the memorandum, that would not have any bearing on whether the evidence supports the judgment.” LeBlanc v. Baxter, 2005-33 (La. App. 5th Cir. 5/31/05), 905 So. 2d 415, 430, writ denied, 2005-1742 (La. 1/13/06), 920 So. 2d 239. In Celestine v. City of New Orleans, 2010-0196 (La. App. 4th Cir. 12/22/10), 2010 WL 8972261, at *4 (unpublished), the office of workers’ compensation judge issued a judgment prior to the submission of the requested post-trial briefs. The court noted that the judge was not obligated to wait for the post-trial briefs. Id. In Williams v. Par. of St. Bernard, 2015-1105 (La. App. 4th Cir. 12/2/16), 206 So. 3d 259, 273 n.14, writ denied, 2016-2280 (La. 2/3/17), 215 So. 3d 696, the plaintiff assigned as error that the trial court erred in issuing its judgment prior to the date set for submission of post-trial briefs. The court noted that plaintiff did not provide any legal authority to support his argument and did not indicate any prejudice suffered as a result of the trial court rendering judgment prior to the submission of post-trial briefs. Id.
CONCLUSION
For the above and foregoing reasons, we affirm the trial court‘s August 13, 2019 judgment. All costs in this matter are assessed to Nedra Holder.
AFFIRMED.