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NOT DESIGNATED FOR PUBLICATION

J. PETER LABORDE, JR. VERSUS PIA LYONS LABORDE

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NO. 2012-CA-0054 COURT OF APPEAL

* FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2005-08690, DIVISION "A-DRS-3" Honorable Tiffany G. Chase, Judge ****** Judge Roland L. Belsome ****** (Court composed of Judge James F. McKay, III, Judge Roland L. Belsome, Judge Joy Cossich Lobrano) Richard Duplantier, Jr. Carlina C. Eiselen GALLOWAY JOHNSON TOMPKINS BURR & SMITH 701 Poydras Street 4040 One Shell Square New Orleans, LA 70139 COUNSEL FOR APPELLANT James M. Williams Alanah O. Hebert GAUTHIER HOUGHTALING & WILLIAMS, L.L.P. 3500 N. Hullen Street Metairie, LA 70002 COUNSEL FOR DEFENDANT/APPELLEE

REVERSED AND RENDERED AUGUST 1, 2012

The primary litigation arises out of the divorce and partition of community property of Peter Laborde and Pia Lyons Laborde. The Labordes' divorce was finalized in January 2006, but the partition of the community property was not resolved until January 2011. In May 2006, Ms. Laborde engaged the services of accountant Charles Theriot. After conducting a substantial amount of accounting for Ms. Laborde, Mr. Theriot terminated his services due to non-payment. When Ms. Laborde failed to pay the outstanding fees, Mr. Theriot filed a petition of intervention in the divorce proceeding seeking satisfaction of his professional fees. After a trial on the merits, judgment was rendered in favor of Mr. Theriot. The trial court relied on Samuel v. Baton Rouge General Medical Center, 99-1148 (La.App. 1 Cir. 10/2/00), 798 So.2d 126, in assessing the award for the outstanding fees. Pursuant to Samuel, the trial court awarded expert fees and attorney's fees at a rate it determined was reasonable. Mr. Theriot appeals that judgment contending that the trial court committed legal error in applying Samuel to this case. We agree. On appeal, the trial court's findings of fact are reviewed under a manifestly erroneous/clearly wrong standard, while questions of law are reviewed de novo.

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Lakeland Anesthesia, Inc. v. United Healthcare of Louisiana, Inc., 2003-1662, p. 10 (La. App. 4 Cir. 3/17/2004), 871 So.2d 380, 388. The trial court's factual finding that Mr. Theriot was owed for work he had performed for Ms. Laborde was supported by the evidence presented at trial. During the trial Mr. Theriot detailed his work product and provided the court with substantial documentation to corroborate his testimony. No evidence was presented to establish that the work was not performed. Thus, we do not find that the trial court erred by ruling in favor of Mr. Theriot. However, we find that the trial court erred when it relied on the factors set forth in Samuel to determine the value of the outstanding fees. Samuel was a medical malpractice case where general damages were awarded to the plaintiffs. The trial court awarded the plaintiffs, as the prevailing party, fees for their expert witnesses. Samuel, supra. The defendants appealed the judgment and the plaintiffs answered the defendants' appeal contending that the trial court's award of $3,500 for one expert physician and $1,300 for the other expert physician were unreasonably low. Id. The Samuel court reasoned that Louisiana Revised Statutes 13:3666 and 13:4533, as well as, Louisiana Code of Civil Procedure article 1920 give the court vast discretion in setting expert fees and awarding costs. The court provided some factors that can be considered when determining the amount of expert fees to award.1 The statutes cited in Samuel allow for the award of fees and costs as a reimbursement or an offset of expenses exhausted by the prevailing party. Any

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"Factors to be considered by the trial court in setting an expert witness fee include: the time spent testifying at trial, time spent in preparatory work for trial, time spent away from regular duties while waiting to testify, the extent and nature of work performed, and the knowledge, attainments, and skill of the expert. Additional considerations include the helpfulness of the expert's testimony to the trial court, the amount in controversy, the complexity of the problem addressed by the expert, and awards to experts in similar cases." Samuel, p. 8, 798 So.2d at 132.

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award under those statutes has no bearing on the party's contractual obligation to the expert or attorney. Additionally, there are no provisions for attorney's fees in those statutes. Thus, the trial court's use of the factors enunciated in Samuel for evaluating the fees owed to Mr. Theriot was clearly erroneous and an error of law. Instead, Mr. Theriot's intervention to collect his professional fees falls squarely within the parameters of Louisiana's Open Account statute La. R.S. 9:2781.2 An "open account" includes "debts incurred for professional services, including but not limited to legal and medical services." La. R.S. 9:2781. Over the course of their two-and-a-half year professional relationship, Mr. Theriot performed multiple accounting services for Ms. Laborde including examining issues relating to child support amounts, investigating the community assets and liabilities between the Labordes, and also preparing her tax returns. During that two-and-a-half year period, Mr. Theriot's firm performed over 1600 billable hours of accounting services. Two witnesses were called to dispute the quality and value of Mr. Theriot's work, Jason Williams and Ralph Litolff. Mr. Williams testified that when he

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La R.S. 9:2781 reads in pertinent part:

A. When any person fails to pay an open account within thirty days after the claimant sends written demand therefor correctly setting forth the amount owed, that person shall be liable to the claimant for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant. Citation and service of a petition shall be deemed written demand for the purpose of this Section. If the claimant and his attorney have expressly agreed that the debtor shall be liable for the claimant's attorney fees in a fixed or determinable amount, the claimant is entitled to that amount when judgment on the claim is rendered in favor of the claimant. Receipt of written demand by the person is not required. B. If the demand is forwarded to the person by first class mail to his last known address, a copy of the demand shall be introduced as evidence of written demand on the debtor. C. If the demand is made by citation and service of a petition, the person shall be entitled to pay the account without attorney fees by delivering payment to the claimant or the claimant's attorney within ten days after service of the petition in city courts and fifteen days after service of the petition in all other courts. D. For the purposes of this Section and Code of Civil Procedure Articles 1702 and 4916, "open account" includes any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions. "Open account" shall include debts incurred for professional services, including but not limited to legal and medical services. For the purposes of this Section only, attorney fees shall be paid on open accounts owed to the state.

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signed on as Ms. Laborde's attorney in late 2008, Mr. Theriot was seeking payment for outstanding fees.3 The majority of Mr. Theriot's work that comprised his outstanding fee was done prior to Mr. Williams becoming Ms. Laborde's attorney. Mr. Theriot's firm did do some work on the case after Mr. Williams took over; however, the fees remained unpaid. Mr. Williams testified at trial as a fact witness and stated that he thought the bills were unreasonable and that the work was not reflective of the amount of time that had been billed. Mr. Litolff's firm was retained by Mr. Williams to further develop the valuation of the Labordes' community property. Mr. Litolff was presented in this matter as an expert witness. Mr. Litolff testified that he billed approximately $200,000.00 for his firm's work on Ms. Laborde's case. He also stated that he did not review any of Mr. Theriot's invoices and had no idea of the complexity of work performed by Mr. Theriot. Mr. Litolff further indicated that he used materials prepared by Mr. Theriot. Again, there was no evidence presented during Mr. Litolff's testimony disputing the amount of services rendered and nothing to prove that any reduction in the fee was warranted. Although Ms. Laborde now argues that she and Mr. Theriot did not have a contract for his services, the evidence established that on May 12, 2006, an engagement agreement was signed by Ms. Laborde's attorney on her behalf. The agreement included the retainer amount and hourly billing, along with a statement that they bill on a monthly basis and expect full payment of the fees as well as a specific provision regarding Mr. Theriot's right to withdraw if Ms. Laborde

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Ms. Laborde originally retained attorney Cindy Williams; this was also the time Ms. Laborde began using Mr. Theriot's services. Later Ms. Williams was terminated and Mitchell Hoffman was retained. Ms. Laborde continued her professional relationship with Mr. Theriot. Eventually Ms. Laborde terminated Mr. Hoffman. Once Mr.

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changed attorneys. Additionally, it is undisputed that Ms. Laborde honored the agreement by making partial payment to Mr. Theriot on her own account for services rendered. There was no evidence presented at trial to refute the existence of a contract. Mr. Theriot sent written demand to Ms. Laborde's current address for the correct amount owed, as required by La. R.S. 9:2781(A). Since no payment had been made within thirty days of the written demand and judgment has been rendered in favor of Mr. Theriot, Ms. Laborde is liable for attorney's fees and the collection of the claim. La. R. S. 9:2781. Mr. Theriot's attorney presented the trial court with an itemization of his attorney's fees totaling $16,000.00. We find that the evidence produced at trial merits an award in Mr. Theriot's favor. However, as discussed, it was not within the trial court's discretion to adjust the amounts owed, unless warranted by the evidence. Therefore, we vacate the trial court's judgment and award Charles Theriot the outstanding contractual amount of $90,273.93, plus legal interest from the date of judicial demand, and $16,000.00 in attorney's fees.

REVERSED AND RENDERED

Williams was retained Mr. Theriot began seeking payment for outstanding fees for work that had been performed under the two former attorneys.

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