Abadie v. Bacino

91 So. 3d 1220, 12 La.App. 5 Cir. 16, 2012 WL 1868209, 2012 La. App. LEXIS 700
CourtLouisiana Court of Appeal
DecidedMay 22, 2012
DocketNo. 12-CA-16
StatusPublished

This text of 91 So. 3d 1220 (Abadie v. Bacino) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abadie v. Bacino, 91 So. 3d 1220, 12 La.App. 5 Cir. 16, 2012 WL 1868209, 2012 La. App. LEXIS 700 (La. Ct. App. 2012).

Opinion

WALTER J. ROTHSCHILD, Judge.

|2On March 26, 2010, Cecelia Farace Abadie filed this suit on open account for legal services and expenses against Wayne Bacino, Kay Bacino and Toni Bacino Mar-rone 1, claiming that a balance of $10,038.83 was due on the account. Defendants answered the petition with a general denial, and plaintiffs subsequent motion for summary judgment was denied. Following trial on the merits, judgment was rendered in favor of plaintiff and against defendants for the balance due as well as legal interest and attorney’s fees.

Defendants now appeal from this judgment, arguing that the trial court erred in finding a valid contract between the parties. Specifically, defendants contend that plaintiff failed to prove the existence of a third-party beneficiary contract for the provision of legal services to Toni Mar-rone. For the reasons stated herein, we affirm.

At trial, Cecelia Abadie testified that she has known the Bacinos for over 20 years. She stated she spoke to Wayne Bacino in June of 2007, when he mentioned that his daughter, Toni Marrone, was involved in a custody case and they were having problems with the attorney. Mrs. Abadie stated she agreed to speak with|sMs. Marrone if the arrangement with the attorney did not work out. In October of 2007, Toni Marrone met with Mrs. Abadie regarding the custody matter. At the time, the Baci-nos were out of town and did not attend the meeting. However, Mrs. Abadie testified that she informed Ms. Marrone of her legal fees and other costs associated with the litigation, and Ms. Marrone explained that although she was not employed, her parents would pay for the legal services. Mrs. Abadie wrote down these terms on a sheet of paper and gave it to Ms. Marrone.

Mrs. Abadie testified that the following week, on October 18, 2007, Kay Bacino called her and they discussed the meeting with Ms. Marrone and the terms of Mrs. Abadie’s representation. Mrs. Abadie explained that she was not charging a retainer, but that she would ask for regular payments to be applied to costs and legal fees. Mrs. Bacino agreed to write her a cheek, and on October 23, 2007, Mrs. Aba-die received a check dated October 18, 2007 in the amount of $1,000 written on the account of Wayne and Kay Bacino with the notation “attorney’s fees” and “loan to tom.”2

Mrs. Abadie testified that she worked 286.25 hours on the Marrone case which she logged into a work journal and she submitted both the journal and a time sheet into evidence. Mrs. Abadie also testified that she spoke to Wayne Bacino often about this case, and that he determined the strategy and expenditures.

Mrs. Abadie remained as counsel until February 16, 2008, when Wayne Bacino called her to say her services were no longer required. Mr. Bacino and Ms. Marrone were upset over an offer of settlement Mrs. Abadie made to opposing counsel on the previous day. Mrs. Abadie stated she prepared the file and it was picked up by Mr. Bacino and Ms. Marrone the same day. Ms. Marrone signed a Lrelease of the file at this time. Mrs. [1222]*1222Abadie stated that the handwritten contract she discussed with Ms. Marrone in October was included in this file.

Mrs. Abadie presented evidence that she sent a detailed bill for legal services to the parties on May 19, 2009. The balance due on the account was $10,038.83. However, she did not receive payment on the account and subsequently filed the present lawsuit seeking to collect the balance.

Kay Bacino testified at trial that her husband was usually the person who handled telephone conversations with Mrs. Abadie, and that she did not speak to Mrs. Abadie about payments for legal representation. She stated she did not have an oral contract with Mrs. Abadie to represent Toni Marrone. However, she stated that she wrote checks payable to Mrs. Abadie at the direction of her husband, Wayne Bacino, and she believed that these were loans to her daughter for which she would be paid back.

Toni Marrone testified that she called Mrs. Abadie in October of 2007 because she needed an attorney to represent her at a custody hearing. She met with Mrs. Abadie, but she did not enter into either a written or oral contract at that time. Rather, she stated that Mrs. Abadie wanted to help with her case because of her friendship with her family and in order to help her one-year old child. She stated she asked her parents for a loan to help with court fees and costs. However, she admitted that she stated in an affidavit that her parents paid attorney’s fees which they negotiated with the attorney without reference to a loan. She also stated that there was no contract between her parents and Mrs. Abadie, as everything went through her.

Wayne Bacino testified that he recommended that Toni Marrone contact Cecelia Abadie to assist her with a custody matter. He believed that Mrs. Abadie agreed to represent Ms. Marrone because of her friendship with him. He stated he |Rdid not enter into a contract with Mrs. Abadie and he had no discussion with her regarding attorney’s fees. Mr. Bacino stated he was not a party to the litigation and that Ms. Marrone both hired and fired Mrs. Abadie. He stated he considered himself as an advisor to Mrs. Abadie, and that his name is listed in her work records because she asked him to do certain things to assist with the ease. He stated that he did not authorize the payment of attorney’s fees to Mrs. Abadie, and any checks written on his account to Mrs. Abadie were actually loans to his daughter.

At the close of evidence, the trial court found that plaintiff proved by a preponderance of the evidence that there was an agreement between the parties, tacit or otherwise. The court found that there was no dispute that the work was performed by plaintiff as billed and that defendants made payments on the account without objection. With regard to the loan relationship, the court found that this was a matter between the parties who assumed responsibility for payment. Thus, by judgment rendered on July 11, 2011, the court found defendants liable in solido for the balance due on the account, $10,038.83, as well as 25% in attorney’s fees.

On appeal, defendants concede that Toni Marrone entered into a valid contract for legal representation with Cecelia Abadie. However, they contend that any oral agreement with the Bacinos cannot be construed as a third party beneficiary arrangement as the beneficiary in this case, Toni Marrone, was a party to the primary contract. Rather, they contend that the agreement on their part was more in the nature of a suretyship or assumption of the obligation, both accessory contracts which are required to be in writing. As there is no written agreement between the [1223]*1223Baeinos and Mrs. Abadie, defendants argue that the trial court erred in holding them liable in solido for the balance due on the account.

| fiSuits on open accounts are governed by La. R.S. 9:2781, and the statute includes debts incurred for legal services. For there to be an action on an open account, there must necessarily be a contract which gave rise to the debt. Vezina & Associates v. Gottula, 94-593, p. 7 (La. App. 5 Cir. 3/1/95), 652 So.2d 85, 89, unit denied, 95-0825 (La.5/5/95), 654 So.2d 332

A contract is formed by the consent of the parties established through offer and acceptance. La. C.C. art. 1927. La. C.C. art. 1939 provides that an offer may be accepted by performance:

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Bluebook (online)
91 So. 3d 1220, 12 La.App. 5 Cir. 16, 2012 WL 1868209, 2012 La. App. LEXIS 700, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abadie-v-bacino-lactapp-2012.