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NOT DESIGNATED FOR PUBLICATION LOWE, STEIN, HOFFMAN, ALLWEISS & HAUVER, L.L.P. COUPsT OF APPEAL, VERSUS FIFTH CRCUIT NO. 05-CA-700 FIFTH CIRCUIT COURT OF APPEAL

LISA KAY WRIGHT #g

MM

8 2006
STATE OF LOUISIANA

ON APPEAL FROM THE FIRST PARISH COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 136588, DIVISION "A" HONORABLE REBECCA M. OLIVIER, JUDGE PRESIDING

MARCH 28, 2006

CLARENCE E. MCMANUS
JUDGE
Panel composed ofJudges Edward A. Dufresne, Jr., Marion F. Edwards and Clarence E. McManus

MICHAEL A. TUSA LOWE, STEIN, HOFFMAN, ALLWEISS & HAUVER
Attorney at Law 701 Poydras Street Suite 3600 One Shell Square

New Orleans, Louisiana 70139 COUNSEL FOR PLAINTIFF/APPELLANT

LISA K. WRIGHT
In Proper Person

4209 Chateau Boulevard
Apartment "L" Kenner, Louisiana 70065

DEFENDANT/APPELLEE

AFFIRMED

In February 1995, Lisa Kay Wright ("Wright") hired Terence Hauver ("Hauver"), an attorney with Lowe, Stein, Hoffman, Allweiss & Hauver, LLP
("Lowe, Stein"), to represent her in a domestic proceeding. Hauver represented

Wright until February 2001. Hauver died in December 2002.
On December 9, 2003, Lowe, Stein filed Petition on Open Account against Wright alleging Lowe, Stein performed legal services for Wright from February 8,

1995 until February 14, 2001, with total fees due of $12,370.53. Wright filed an
Answer to the lawsuit on January 12, 2004, stating that Hauver had agreed to accept a settlement on the claim for attorney's fees in the domestic proceeding and he had agreed to write off the remaining fees, over that settlement amount. Wright attached a letter sent to her from Hauver, dated October 30, 2000. The letter stated that the Fourth Circuit Court of Appeal had set aside the trial court's award of $7,500 for attorney's fees and had remanded the matter for rehearing. Hauver also stated in the letter that it was his suggestion to try and settle the matter and, in that event, he would agree to write off the fees over and above the settlement amount. Trial was held in the First Parish Court on March 21, 2005 and the court found in favor of Wright. A written judgment was filed on March 24, 2005.

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Lowe, Stein filed a Motion for New Trial on March 31, 2005, which was denied on

May 12, 2005.
At trial, Kevin Randazzo testified that he was the firm's administrator and his duties included overseeing the firm's collections, accounting and day to day running of the firm. He testified that Hauver never instructed him to discount or reduce Wright's bill. Randazzo testified that the billing statements showed a total balance due by Wright of $12,370.53. The billing statements were introduced into evidence at trial. Wright testified at trial that Hauver was her attorney and she never asked him to stop working on the case. Wright further stated at trial that she received a judgment in the domestic case for $7,500 and her child's father was ordered to pay her attorney's fees. However, that judgment was reversed on appeal. Wright then introduced the letter dated October 30, 2000 from Hauver to Wright stating that the Fourth Circuit Court of Appeal had set aside the trial court's award of $7,500 for attorney fees and had remanded the matter for rehearing. Hauver went on to state that his suggestion was to try and settle the matter and, in that event, he would agree to write off the fees over and above the settlement amount. Wright testified that she and Hauver discussed this new fee agreement over the phone and they agreed to continue with the case to try and get the money as payment for Hauver's fees. Wright stated the last communication she had with Hauver was in March 2001 and they discussed the new agreement outlined in the letter. The trial court allowed the letter to be introduced into evidence. After trial, the court found in favor of Wright stating that Lowe, Stein failed to prove by a preponderance of the evidence that Wright owes the money. On March 24, 2005, the trial court signed a written judgment in favor of Wright, finding there was

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insufficient proofto maintain the plaintiff's claims. Therefore, the plaintiff's claims were dismissed, with each party to bear their own costs. Lowe, Stein now appeals alleging three assignments of error. Lowe, Stein argues that the business records admitted into evidence establish prima facie proof of the claim on an open account, the letter from Hauver to Wright was not properly admitted into evidence, and the legal fees due were not compromised by the letter sent or the testimony of Wright that there was an oral agreement. First, we find the trial court did not err in admitting the letter from Hauver to Wright. Further, according to that letter, dated October 30, 2000, Hauver proposed that he would "write off" the fees over and above the settlement amount. Based on this evidence, and the testimony presented by Wright at trial, there was a new agreement, different from the initial agreement formed between Wright and Hauver. Therefore, we agree with the trial court that Lowe, Stein failed to prove by a preponderance of the evidence that Wright owed the $12,370.53 balance reflected on the billing statements. Accordingly, we affirm the trial court's judgment, finding in favor of defendant, Wright, and dismissing all claims by Lowe, Stein against Wright, with each party to bear their own costs.

AFFIRMED

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EDWARD A. DUFRESNE, JR. CHIEF JUDGE * SOL GOTHARD JAMES L. CANNELLA THOMAS F. DALEY MARION F. EDWARDS SUSAN M. CHEHARDY CLARENCE E. McMANUS WALTER J. ROTHSCHILD

PETER J. FITZGERALD, JR. CLERK OF COURT GENEVIEVE L. VERRETTE CHIEF DEPUTY CLERK

JUDGES

FIFTH CIRCUIT 101 DERBIGNY STREET (70053) POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 www.fiftheircuit.org

GLYN RAE WAGUESPACK FIRST DEPUTY CLERK JERROLD B. PETERSON DIRECTOR OF CENTRAL STAFF

(504) 376-1400 (504) 376-1498 FAX

CERTIFICATE
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN MAILED ON OR DELIVERED THIS DAY MARCH 28, 2006 TO ALL COUNSEL OF RECORD AND TO ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

PE

ZGE F CO

, JR T

05-CA-700
Michael A. Tusa Attorney at Law 701 Poydras Street

Suite 3600 One Shell Square New Orleans, LA 70139
Lisa K. Wright, I.P.P. In Proper Person 4209 Chateau Boulevard Apartment "L" Kenner, LA 70065



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