FIRST CIRCUIT
jr-
4r- t.. L VT J-1 W 2022 CA 0946
0611241welm
JUDGMENT RENDERED:
Appealed from the
Twenty -Second Judicial District Court Parish of St. Tammany - State of Louisiana Docket Number 2018- 10569 - Division J
The Honorable Ellen M. Creel, Presiding Judge
Anthony S. Maska COUNSEL FOR APPELLANT Hammond, Louisiana DEFENDANT— Roselle Jones and
Joseph Raymond McMahon Metairie, Louisiana
David L. Browne COUNSEL FOR APPELLEE Cynthia M. Cimino PLAINTIFF— Carr & Associates, Inc.
Metairie, Louisiana
BEFORE: WELCH, PENZATO, AND LANIER, JJ.
16
NYZ
WELCH, J.
In this suit to recover remuneration due for appraisal and expert services
performed in connection with a homeowner' s fire -loss insurance claim, the
homeowner appeals the trial court' s judgment rendered after a bench trial in favor
of the expert. For the following reasons, we maintain the appeal; we affirm in part,
The parties have a history of transacting business with one another. Roselle Jones was the owner of immovable property located at 1817 Napoleon Avenue in New Orleans, Louisiana. Ms. Jones hired Earl Carr, Jr.' s company, Carr &
Associates, Inc. ( collectively " Carr"), to perform appraisal and estimating services in connection with a hurricane claim filed with her homeowner' s insurer, Chubb &
Son Inc./Chubb Group of Insurance Companies/Federal Insurance Compara collectively " Chubb"), dating back to Hurricane Katrina. Carr successfully helped Ms. Jones obtain insurance proceeds in excess of one million dollars from Chubb on
her hurricane claim.
Shortly after settling the hurricane claim, Ms. Jones' property was extensively
same insurer, Chubb. In January 2009, Chubb made an initial, unconditional
payment of $622, 777. 00 to Ms. Jones on the fire -loss claim. Thereafter, Ms. Jones
hired Carr as her appraiser regarding the remaining open items on her fire -loss claim. Carr was charged with identifying and appraising the scope and value of the repairs to restore the property to its pre -fire condition. The parties memorialized the contract n writing on October 6, 2009. The contract, titled " Agreement and Authonizatioz
fees, court costs, and collection fees in the event of Ms. Jones' nonpayment. Ms.
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Jones also signed an October 6, 2009 addendum, stating she understood there were
fire -loss claim. The parties do not dispute that Carr has never been registered or
licensed as an appraiser in Louisiana. Chubb appointed Richard Huss as its appraiser. Carr and Huss agreed to the appointment of retired Judge Charles Hanemann as
umpire to resolve any differences during the appraisal process.
Acting under the October 2009 agreement, Carr performed appraisal services for Ms. Jones through July 2012, on the remaining open items on her fire -loss claim.
the amount of $477,426.00. Carr alleged, however, that Ms. Jones provided little to
no cooperation in producing documentation on her fire -loss claim during the
In 2012, the Legislature enacted La. R.S. 22: 1807. 0 Effective August 1, 2012, La. R.S. 22: 1807. 1 requires appraisers for fire and extended insuranc4
coverage to register and pay an applicant fee to the Commissioner of Insurance iM order to engage in appraisal services. Prior to the enactment of La. R. S. 22: 1807. 1,
Carr informed Ms. Jones that this legislation was being considered in an email dated March 30, 2012:
Are you back from your trip? If so[,] we need to move forward with the production of documentation requested.
The insurance commissioner has a bill in the legislature that will most likely prohibit me from being an appraiser.
If this passes[,] most bills go into effect in August. So we
need to get this resolved ASAP. Please call me to set up a date and time to provide the documentation. I think this can be resolved quickly if you provide the documentation requested.
Between the August 1, 2012 effective date of La. R.S. 22; 1807. 1, and through
March 2013, Carr communicated with Chubb, at Ms. Jones' request, in attempts to
1 See 2012 La. Acts No. 96, § I ( eff. Aug. 1, 2012).
I
prevent Chubb from terminating the remaining open items on Ms. Jones' fire -loss claim. Other than those communications with Chubb, Carr performed no appraiser work on Ms. Jones' fire -loss claim. Carr informed Ms. Jones via email dated
September 9, 2012, that he intended to withdraw as the appraiser if she failed to
Six months later, in March 2013, Ms. Jones decided to terminate her fire -loss
claim and move forward with a federal lawsuit that she had previously filed against Chubb .2 MS. Jones asked Carr to serve as an expert on her fire -loss claim in anticipation of trial. In a March 6, 2013 email, Ms. Jones gave Carr permission to
speak to her attorney, Anthony S. Maska, regarding the litigation of her fire -loss claim. Thereafter, Carr worked as an " expert" on Ms. Jones' fire -loss claim
litigation, helping to establish the extent of her damages. Carr generated an expel,
that the rate of Carr' s expert services— for inspection, generating a report, and
through April 20, 2014 ( approximately one year), when she requested a final bill
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Jones. The final invoice showed an account billing statement for the appraiser work 1111111 ia111111111 IrIvIrIn ie' rlli g 1! 1, 111
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2 MS. Jones filed suit against Chubb & Son, Inc. and Federal Insurance Company in 2009 for defendants' alleged failure to timely and fully compensate her for her various losses (covered under her homeowners' insurance policy), after an October 24, 2008 fire caused extensive damage to her home. After defendants removed the case to federal court, the case was closed for three years for an attempted appraisal process, then reopened and set for a bench trial on May 18, 2014. Prior to that trial, however, Ms. Jones filed an ex partelconsent motion to dismiss her lawsuit. The federal district court granted her motion to dismiss in an order signed on April 28, 2014, which dismissed the case with prejudice, each party to bear their own costs. See Jones v. Chubb & Son, Inc. et at., Docket No. 2: 09 -CV -07516 ( E.D. La.).
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Ms. Jones did not pay Carr' s final invoice. The parties discussed payment of the final invoice via email. On May 7, 2014, Ms. Jones offered to settle Carr' s final invoice for $ 30,000. 00, which Carr rejected. On May 21, 2014, Carr made a fina
Thereafter, on June 30, 2014, Carr filed suit against Ms. Jones in the Civil
District Court for the Parish of Orleans (" CDC"). Carr' s petition alleged that "[ fln
accordance with the remuneration agreed upon between the parties, the
compensation due to petitioner ... is $ 50, 335. 00." Carr' s suit was subsequentli dismissed via a dilatory exception of improper service of citation upon Ms. Jones; thereafter, Carr properly served Ms. Jones. In response, Ms. Jones filed a declinatory
exception raising the objection of improper venue. After the CDC signed a consent judgment3 sustaining Ms. Jones' exception of improper venue, the matter was
transferred to the Twenty -Second Judicial District Court (" 22nd JD") for the Parish
Ms. Jones then filed a peremptory exception raising the objection of prescription, arguing that suit was filed in an improper venue ( the CDC) and did not interrupt prescription. The trial court sustained her exception. Carr' s former counsel,
The Law Offices of Robert C. Lehman, LLC, who had intervened in the lawsuit
seeking attorney' s fees and advanced litigation costs, appealed the trial court' s
2019- 0550 ( La. App. I' t Cir. 12/ 27/ 19), 292 So. 3d 577, 584, this Court was tasked with determining whether the consent judgment constituted a legal barrier precluding consideration of whether the matter was timely filed in a court of proper
3 In the consent judgment, the parties consented to the transfer only.
9
venue in the context of Ms. Jones' exception of prescription. This Court held that
the consent judgment on the exception of improper venue was not a legal barrier that
precluded consideration of venue as an element of prescription; thus, the trial court
was required to make an independent determination regarding whether suit was originally filed in the proper venue before ruling on Ms. Jones' exception of
prescription. Upon remand, the trial court denied Ms. Jones' re -urged exception of
prescription.
The matter was set for bench trial on February 10, 2022. The parties prepared
2 joint pre-trial order, appeared for an in -chambers pre-trial conference, and attendeE a settlement conference three days prior to trial. The day after the settlement
conference, Ms. Jones moved to continue the bench trial due to an " unavoidable,
work-related absence," alleging that she had FAA -mandated " multi -day pilot
continuance.
The matter proceeded to a one -day bench trial on February 10, 2022. At the outset of trial, the trial court orally denied Ms. Jones' motion for continuance. After counsel for Carr rested his case -in -chief, counsel for Ms. Jones moved for a partial
directed verdict regarding: 1) the scope of Carr' s work under the parties' October
2009 contract after August 1, 2012; and 2) Carr' s alleged failure to providS corroborating circumstances proving his entitlement to payment under a purported oral contract. Counsel for Ms. Jones argued that as of August 1, 2012, Carr could no
longer legally engage in appraiser work for Ms. Jones; thus, any appraiser work he completed after that date was in breach of, or beyond the scope of, the parties'
October 2009 contract. Counsel for Ms. Jones further argued that Carr failed to
provide corroborating circumstances to prove he and Ms. Jones orally contracted for his expert services after August 1, 2012.
The trial court denied Ms. Jones' motion for partial directed verdict,
reasoning:
Whether [ Carr] was doing appraisal work or expert work, the question the Court has[:] was there a thing, was there a price, was there ... consent; his services, $ 300 an hour.
Consent is shown not just by his testimony, not just by his bill,
but by the defendant' s behavior, the defendant' s emails, which came into evidence without objection.
So the Motion for Partial Directed Verdict is denied.
At the conclusion of the bench trial, the trial court took the matter under
advisement. On March 21, 2022, the trial court rendered judgment in favor of Carr,
and against Ms. Jones, awarding Carr $ 49,810. 00 for services Carr provided to MI Jones under the October 2009 contract; awarding Carr reasonable attorney' s fees under the contract in the amount of $19, 924. 00, through conclusion of the trial on
the merits; awarding Carr court costs paid thus far through ultimate collection of the full sum owed; and awarding judicial interest under the contract from April 29, 2014, until paid. The trial court issued written reasons for its judgment. Ms. Jones now
appealS4 the trial court' s March 21, 2022 judgment.
Appellate jurisdiction extends to final judgments. See La. C. C. P. arts. 1841,
0171, 2016- 0172 ( La. App. 1s Cir. 4/ 12/ 17), 218 So. 3d 1045, 1053. A valid final
judgment must be precise, definite, and certain. See Laird v. St. Tammany Par.
must name the party in favor of whom the ruling is ordered, the party against wholm the ruling is ordered, and the relief that is granted or denied. Advanced Leveling &
4 MS. Jones timely filed a petition for suspensive appeal on May 3, 2022. The trial court signed an order of appeal on May 5, 2022, notice of which was transmitted by the clerk of court to the parties on May 12, 2022.
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Concrete Solutions v. Lathan Company, Inc., 2017- 1250 ( La. App. Is' Cir.
12/ 20/ 18), 268 So3d 1044, 1046 ( en banc), citin Laird, 836 So. 2d at 365; Carter
v. Williamson Eye Center, 2001- 2016 ( La. App. 11t Cir. 11/ 27/ 02), 837 So.2d 4.1 14. In the absence of proper decretal language, a judgment is defective, and th,;
appellate court lacks jurisdiction to review the merits. Boyd Louisiana Racing, Inc. v. Bridges, 2015- 0393, 2015- 0394, 2015- 0395 ( La. App. lst Cir. 12/ 23/ 15), 2015
WL 9435285 at * 4 ( unpublished).
Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable pursuant to L11 C. C.P. art. 1920, which has been liberally interpreted as granting broad discretion to the trial court. Gauthier v. Wilson, 2004- 2527 ( La. App. l' Cir. 11/ 4/ 05), 927 So. 2d
costs which can be taxed against a litigant are those specifically provided for by
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193 So. 2d 252, 253 ( 1966); Town of Walker v. Stafford, 2001- 2188 ( La. App. I"
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costs"
means that the litigant is to pay costs provided for by statute, sometimes
termed " legal costs" or " costs of the proceedings." See St. Tammany Par. Hosd Vwrv. Dist. No. 2 v. Schneider-, 2000- 0247 ( La. App. I' t Cir. 5111101), 808 So. 2d
576 588. See also Locke v. MADCON Corp., 2022- 0630 ( La. App. Ist Cir.
So3d 2022 WL 17845489 at * 2.
Louisiana Revised Statutes 13: 4533 provides, " The costs of the clerk, sheriff,
witness' fees, costs of taking depositions and copies of acts used on the trial, and all other costs allowed by the court, shall be taxed as costs." Fees for expert witnesses
are addressed in La. R.S. 13: 3666( A), which mandates that such witnesses " shall
receive additional compensation, to be fixed by the court, with reference to the value
F-
of time employed and the degree of leaming or skill required." Under La. R.S.
13: 3666 and 13- 4533, as well as La. C. C.P. art. 1920, the trial court has greeB discretion in awarding costs, including expert witness fees, deposition costs, exhibit costs, and related expenses. Suprun v. Louisiana Farm Bureau Mut. Ins. Col
The trial court retains jurisdiction to set and tax court costs, expert witness
fees, and attorney fees pursuant to La. C.C.P. art. 2088( A)( 10), since the amount of
court costs cannot be determined with certainty until after trial. Denton v. State WOR
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a judgment that awards a sum to which must be added the costs of additiona expenses that are yet to be calculated is not a final judgment over which this court
can exercise appellate jurisdiction. U.S. Bank Nat' l Ass' n as Tr. for RFMS1
In the instant matter, the trial court' s March 21, 2022 judgment provided:
IT IS HEREBY ORDERED ADJUDGED AND ONECREED that there be judgment in favor of Plaintiff Carr & Associates, Inc. and against Defendant Roselle Jones as follows -
3. Awarding Plaintiff Carr & Associates, Inc. all of Plaintiffs court costs paid in this matter thus far and through ultimate collection of the full sum owed.
It is not determinable from the judgment' s language—" court costs paid ...
through ultimate collection of the full sum owed"— whether the trial court' s order to
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by statute, i.e., " legal costs" or " costs of the proceedings." See La. C. C. P. art. 1920;
KLIML
So. 2d at 588; Locke, _ So3d at 2022 WL 17845489 at * 2. It appears from
the language of the judgment that the trial court awarded costs " that are yet to be calculated," which is not a final judgment over which this court can exercise
appellate jurisdiction. See U.S. Bank Nat' l Ass' n as Tr. for RYMSI 2005S7, 340
This Court issued an interim order on March 21, 2023, remanding the matter in accordance with La. C. C. P. art. 2088( A)( 12) for the limited purpose of instructing the trial court to sign an amended judgment. Carr & Associates, Inc. v. Jonea 2022- 0946 (La. App. I' t Cir. 3/ 21/ 23) ( unpublished action). Thereafter, the Clerk of
Court for the Twenty -Second Judicial District Court for the Parish of St. Tammany
2023, which cured the apparent defect. We therefore maintain the appeal.
In her first assignment of error, Ms. Jones asserts that the trial court erred in
denying her motion to continue the bench trial. Continuances may be granted on either peremptory or discretionary grounds. La. C. C.P. arts. 1601 antl 1602. A peremptory grounds for a continuance are when " the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself
without the contrivance of the party applying for the continuance." La. C. C. P. art.
therefor." La. C.C. P. art. 1601. The trial court has wide discretion in ruling on a motion for continuance, and absent a clear showing of an abuse of that discretion, the appellate court will not disturb the trial court' s ruling on appeal. Newsome v.
1 1 i III 1I !I 111111 1, Izi == 0 1 i I 111 111Mmm
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on July 12, 2021 with the trial court, and that this matter was set for bench trial on
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February 10, 2022 by a scheduling order dated July 12, 2021. Thus, Ms. Jones had notice as early as July 2021 that this matter was set for trial on February 10, 2022. The record further shows that • s prepared a • pre- trial order arCe
submitted it to the trial court on January 5, 2022. The minutes reflect that the parties also appeared for an in -chambers pre-trial conference with the trial court on January M 2022. The parties also attended a settlement conference on February 7, 2022, three days prior to trial. The day after the settlement conference, February 8, 2022, Ms. Jones moved to continue the bench trial due to an " unavoidable, work-related
absence," alleging that she had a " multi -day pilot training in Phoenix, Arizona" set
At the beginning of the bench trial on February 10, 2022, the trial court heard argument from counsel regarding Ms. Jones' motion to continue. Counsel for Ms. Jones stated that she would miss the trial because she was in FAA -mandated flight
training in Phoenix, Arizona. Counsel noted that Ms. Jones was aware it was possible her training could conflict with the bench trial, and that she " made various efforts to try to confirm whether or not she would be able to get out of it, reschedule it. She was unable to do • ." Counsel argued that Ms. Jones " had to • a •
between losing her job and appearing in court today" and that there was " no way tM reschedule" the flight training. Ms. Jones' counsel offered no evidence in support of her motion to continue.
Counsel for Carr argued that Ms. Jones knew in advance of trial that it was
possible she would be unavailable to appear in court on February 10, 2022, and that her motion to continue was " an eleventh -hour motion." Counsel further argued that
Ms. Jones presented no evidence of "good cause" for a continuance, such as an
affidavit or letter from her or a controlling government authority indicating that the
Jones made no mention that flight training could potentially conflict with the trial
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date during the January 10, 2022 pre-trial conference, a month prior to trial. Counsel for Carr further argued the impossibility of her employment being prejudiced by missing the flight training, when at the February 7, 2022 settlement conference, counsel for Ms. Jones represented that she was unemployed.'
After hearing the parties' arguments on Ms. Jones' motion to continue, the
trial court orally denied the motion, reasoning:
The Court is going to note that the lawsuit has been pending since 2014, so it' s been seven -and -a -half years, at least, pushing eight. We' ve known about this trial date since July of 2021. We had a pretrial conference January 10th, and it wasn' t until February 7th that we first learned that she had a mandatory training starting February 8th, the next day.
At our pretrial, we did discuss that it was going back to January 4th that she was advised that there was an updated schedule for her training. I do realize, as counsel has shared with us at the pretrial conference, that January 10th, January I I th, January 14th, those [ training] dates may not have been set in stone. They had been assigned to her. She was following up to be sure they were set in stone.
I don' t expect somebody to hope the guy ahead of them gets Covid in order for them to make a trial date, but at the same time, there was an email January 20th telling her that training] starts February 8th, and that [ training] was going. [ D]espite her having knowledge of that January 20th, there was no communication with the Court for another 18 days at least requesting a continuance. Having discussed it with the Court three days before the trial and then filing the Motion to Continue is very much at the eleventh hour, particularly considering the age ofthis case.
The Court' s schedule, we have our cases stacked up like planes waiting to land, not with just the volume, but the litigation in the ordinary course of business. Had we known earlier, we probably could have scheduled
something else for an economic use of the Court' s time.
We find no abuse of discretion in the trial court' s decision to deny Ms. Jones'
011111111 1111111 ME= V
for eight years, and the parties had already incurred expenses preparing for trial. As shown by the transcript, the timeliness of the motion for continuance was of concern
The record shows that in a September 12, 2012 email to Carr, Ms. Jones stated: " For the record, I retired from flying to be with my family."
to the trial court. Although Ms. Jones was allegedly mandated by the FAA to participate in flight training, the record reveals that she had knowledge of the need for the continuance as early as the pre-trial conference held in January 2022. However, Ms. Jones did not file a motion to continue until two days prior to trial.
The transcript of the hearing contains no explanation for this delay. Further, counsel for Ms. Jones offered no evidence in support of her motion to continue. Given these
circumstances, we find no abuse of discretion in the trial court' s denial of Ms. Jones'
motion for continuance.
Ms. Jones has raised seven assignments of error all relating to the trial court' s findings that Carr presented sufficient testimony and corroborating evidence to show that the terms of the parties' October 2009 contract ( and Carr' s standard billing practices thereunder) continued beyond August 1, 2012; and, that Carr presented
An appellate court' s review of factual findings is governed by the manifest Pt
error or clearly wrong standard. Lewis v. Fowler, 2018- 0365 ( La. App. C113
finding is: ( 1) whether there is a reasonable factual basis in the record for the finding of the trial court; and ( 2) whether the record further establishes that the finding is not manifestly erroneous. Mart v. Hill, 505 So. 2d 1120, 1127 ( La. 1987); Marietta Tr.
v. J.R. Logging Inc., 2016- 1136 ( La. App. I st Cir. 5/ 11/ 17), 225 o. 3d 1144, 1147,
writ denied, 2017- 1751 ( La. 12/ 5/ 17), 231 So. 3d 631. Thus, if there is no reasonable
factual basis in the record for the trial court' s finding, no additional inquiry is necessary to there was manifest error. Stobart v. State through i• e; of
Transp. and Dev., 617 So. 2d 880, 882 ( La. 1993); Lewis, 259 So. 3d • 366. 113 however, a reasonable factual basis exists, an appellate court may set aside a trial court' s factual finding only if,after reviewing the record in its entirety, it determines
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the trial court' s finding was clearly wrong. Stobart, 617 So.2d at 882; Marietta, 225 o. 3d at 1147- 48. The manifest error standard of review obligates an appellate
court to give great deference to the trial court' s findings of fact. We will not reverse
O•R •I I I NONE III F Now
regarding the credibility of witnesses, the trier of fact' s findings demand great deference and are virtually never manifestly erroneous or clearly wrong. Secret
court may feel that its own evaluations and inferences are more reasonable than the factfinder' s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. osell,
The trial court made these factual findings, as expressed in its reasons for
Ms. Jones again hired Mr. Carr in October, 2009, for assistance with a fire insurance claim.... The contract was clear that Nft. Carr would provide his services at $ 300. 00 per hour. At the time the contract was entered, the claim was in an appraisal process. The appraisal process eventually broke down... . Ms. Jones expressed her desire to pursue litigation against the insurer in April, 2013, and requested and specifically authorized Mr. Carr to continue his efforts to procure insurance proceeds via the litigation process with an attorney she had retained for that purpose.
While that litigation was pending, changes in the law in regards to licensing/registration of appraisers became effective.
After that point and not having a license or registration, Mr. Carr ceased his actions as an " appraiser,"
and continued working as part of Ms. Jones' litigation team as an expert based on his construction background and prior experience working both for and in opposition to insurance companies.
Contracts have the effect of law for the parties, and the interpretation of a
contract is the determination of the parties' common intent. La. C. C. arts. 1983 and
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3/ 19/ 13), 112 So. 3d 187, 192 { citing Marin v. Exxon Mobil Corp., 09- 2368 ( La.
10/ 19/ 10), 48 So. 3d 234, 258). However, La. C. C. art. 1968 states, "[ t]he cause of
an obligation is unlawful when the enforcement of the obligation would produce a
result prohibited by law or against public policy." To enforce the parties' October
plir i I
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produce a result prohibited by law, since La. R.S. 22: 1807. 1 is a rule of public order requiring appraisers to be properly registered and pay an applicant fee to 44 Commissioner of Insurance in order to engage in appraisal services on fire insurance
contracts. See 2012 La. Acts No. 96, § 1 ( effective Aug. 1, 2012).
Accordingly, the October 2009 written contract governed the parties from the
R.S. 22: 1807. 1. Upon the effective date of the statute, the parties' written contract
was terminated since Carr was now prohibited by law from serving as Ms. Jones' s appraiser, as evidenced by his March 30, 2012 email to her. Thereafter, the trial court made a factual finding that Ms. Jones expressly authorized Carr in April 2013 to perform work as an " expert" in coordination with her attorney, Mr. Maska, during the litigation against her insurer, Chubb. The trial court did not, however, make an
express factual finding that the parties executed an oral contract for Carr' s expeM services, agreed to a rate of payment for his work, or agreed to the payment of
attorney' s fees. However, regardless of whether the parties orally contracted for Carr' s expert services, we readily apply the equitable doctrine of unjust enrichment to support recovery in Carr' s favor for his expert services.
The root principle of unjust enrichment is that the plaintiff suffers an
economic detriment for which he should not be responsible, while the defendant
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i. nvestigations, LLC v. Phillips, 2018- 1543 ( La. App. I' t Cir. 11/ 19/ 20), 316 So.3.0
EIEI Mlltl Ilium E
Safety & Health Assocs., Inc., 510 So. 2d 1345, 1349 ( La. App. 3' Cir.), writ
denied, 513 So. 2d 824 ( La. 1987) ( where an economic benefit is incurred to the
economic detriment of another, even if the court is unable to find a contract in regard
to payment for services, the court would readily apply the equitable doctrine of unjust enrichment.). Louisiana Civil Code article 2298, titled " Enrichment without
cause; compensation," provides:
A person who has been enriched without cause at the expense of another person is bound to compensate that person. The term " without cause" is used in this context to exclude cases in which the enrichment results from_a valid juridical act or the law. The remedy declared here is subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule.
The amount of compensation due is measured by the extent to which one has been enriched or the other has been impoverished, whichever is less.
The extent of the enrichment or impoverishment is measured as of the time the suit is brought or, according to the circumstances, as of the time the judgment is rendered.
To prevail on an unjust enrichment claim, the plaintiff must prove by a preponderance of the evidence all five elements: ( 1) an enrichment; ( 2) an
impoverishment; ( 3) a connection between the enrichment and the resulting impoverishment; ( 4) an absence of justification or cause for the enrichment and
impoverishment; and ( 5) the lack of another remedy at law. Quaternary, 316 So. 3d
The evidence presented at trial showed that during the appraisal process, Carr maintained time and billing records for his services and submitted those records to
Aatement to Ms. Jones showing that he spent 82.25 hours working as an appraisffl on her fire -loss claim through that date. Carr billed in quarter- hour increments ( his
tandard billing practice), at the rate of $ 300.00 per • for a total due of
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24, 675. 00. Carr testified that Ms. Jones made no complaints about Carr' s invoice
or his quarter-hour billing practices. There is no evidence in the record that Ms. Jones taid the February 18, 2011 invoice. Ms. Jones " did not recall receiving" the February
2011 account billing statement, which Carr later resent to her. In May 2012, Carr
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for his time spent traveling, conducting site inspections, engaging in research, preparing reports, reviewing files, and preparing for deposition and trial. He
the " Fee Schedule."
The evidence presented at trial showed that during the litigation process, Ms.
Jones hired Carr to work as an expert on her fire -loss claim. The evidence shows
that Ms. Jones expressly authorized Carr, in an email dated March 6, 2013, to speak to her attorney, Mr. Maska, about her fire -loss claim lawsuit against Chubb. In an email dated March 7, 2013, Carr responded, " Yes, I will be happy to cooperate with Mr. Maska and per your instructions[,] I will contact him." In an email dated April
14, 2013, Ms. Jones confirmed that Carr would be present at Mr. Maska' s office the
next day for a meeting regarding her lawsuit. The record shows that in anticipation
2014, which included his Curriculum Vitae. In fact, the record shows that Carr and
Mr. Maska communicated frequently regarding Ms. Jones' lawsuit, with Carr
providing Mr. Maska with extensive documentation generated during the appraisal process on Ms. Jones' fire -loss claim. Carr reviewed Chubb' s expert documentation
and participated in mediation. Further, Chubb planned on deposing Carr iM connection with this lawsuit, for which Carr prepared with Mr. Maska.
Immediately prior to the federal district court' s dismissal of her lawsuit against Chubb on April 28, 2014, Ms. Jones telephoned Carr and requested a fin.1 bill. Carr submitted his final invoice on April 22, 2014, showing a balance owed to him of $50, 335. 00 for his services. Ms. Jones did not pay Carr' s final invoice. She stated that she was " in disagreement with the times." The parties discussed payment
of the invoice via email. On May 7, 2014, Ms. Jones offered to settle Carr' s invoice
1 1 ffITWo - 01
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fix= After reviewing the record in its entirety, we find that the trial court did not
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for his appraiser and expert services performed for Ms. Jones. The record clearla shows that Ms. Jones obligated herself to pay Carr' s fees, billed f
increments, at the rate of $300. 00 per hour, for his work performed as her appraiser
under the parties' October 2009 contract. Ms. Jones presented no evidence at trial
showing she ever disagreed with Carr' s rate or his standard billing practices; in fact, the record shows that Carr provided Ms. Jones with interim accounting billing statements, which she did not dispute. Based on our review of the record in its
entirety, we hold that the trial court did not manifestly err in finding that Carr presented sufficient testimony and corroborating evidence at trial to prove he performed the billed appraisal services and was entitled to payment.
Furthermore, under La. C.C. art. 2298, we find that Carr is entitled to payment
for his work performed as an expert during the litigation ofMs. Jones' fire -loss claim
through the equitable doctrine of unjust enrichment. The uncontroverted testimony miiiiiiir I
PRIN! Ram lvwlis
lawsuit. Ms. Jones expressly authorized Carr to speak with her attorney. The record shows that during the litigation, Carr met with Ms. Jones at Mr. Maska' s office to discuss the lawsuit. Carr communicated via email and telephone with Mr. Maska
and Ms. Jones. Carr provided Mr. Maska with all the documentation he generatel
report and reviewed Chubb' s expert documentation. Carr prepared for and
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participated in a mediation that was also attended by Ms. Jones. Carr prepared for a
deposition, which ultimately did not occur, since Ms. Jones dismissed her lawsuit.
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submitted a final invoice, including detailed account billing statements, to Ms. Jones. There is no controverting evidence that Ms. Jones disputed Carr' s rate of
300. 00/hour or his standard quarter-hour standard practice at any time during the performance of Carr' s expert services, nor did Ms. Jones ever indicate that she would
economic benefit by having Carr serve as an expert on her lawsuit; that economic
1XIMEMM
In her ninth and final assignment of error, Ms. Jones argues that the trial court
parties' contract after August 1, 2012.
Attorney' s fees are not allowed except where authorized by contract or statute.
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11113MDMUU
1070 ( La. App. Pt Cir. 2/ 17/ 17), 215 o.3d 446, 451. The parties' October 2009
contract provided for attorney' s fees. As expressed in its reasons for judgment, the trial court stated, " The uncontroverted testimony at trial was that Mr. Carr would 131MMEMM
costs." We find that Carr is entitled to an award of attorney' s fees on 40% of his
6, 2009 through July 31, 2012, at the rate of $300.00 per hour.
The final invoice shows that Carr billed 118. 29 hours from October 6, 2009
through July 31, 2012. The trial court deducted 1. 75 hours from Carr' s final invoice for seven line items where Carr testified that he billed 0. 25 hours, but did not actually work 0.25 hours. The trial transcript reveals that those seven line items were billed
during the duration of the parties' contract. Like the trial court, we deduct 1. 75 from 11101111 I I
MEET! HIM AN
July 31, 2012. At the rate of $300.00 per hour, those billed hours total $ 34, 962. 00. Forty percent of $ 34, 962. 00 is $ 13, 984. 80. Thus, we amend the trial courtz attorney' s fee award to award Carr $ 13, 984. 80 in attorney' s fees pursuant to tia
We affirm the portion of the trial court' s March 21, 2022 amended judgment,
in favor of Carr & Associates, Inc. and against Roselle Jones, awarding Carr &
litigation of Roselle Jones' fire -loss claim.
We amend the portion of the trial court' s March 21, 2022 amended judgment,
in favor of Carr & Associates, Inc. and against Roselle Jones, awarding attorneyl
6, 2009 through July 31, 2012, pursuant to the parties' October 2009 contract. We
in favor of Carr & Associates, Inc. and against Roselle Jones, awarding Carr J,' Associates, Inc. all costs of the proceedingsl We amend the portion of the trial court' s March 21, 2022 amended judgment,
interest. We award Carr & Associates, Inc. judicial interest from the date of Carr' s
6 The trial court has great discretion in awarding costs, and on appeal, the trial court' s assessment of costs will not be disturbed absent an abuse of discretion. Reynolds v. Louisiana Dept of Transp., 2015- 1304 ( La. App. Is' Cir. 4/ 13/ 16), 194 So. 3d 56, 59. We find no abuse of the trial court' s discretion in awarding Carr costs of the trial court proceedings.
RE
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final demand for payment, May 21, 2014, until paid in accordance with La. C. C. art. 2000, La. R.S. 9:3'500, and La. R. S. 13: 4202. We affirm the award ofj udicial interest mrmoreml
We assess all appellate court costs to the appellant, Roselle Jone,3
APPEAL MAINTAINED; AFFIRMED IN PART, AMENDED IN PART, AND AFFIRMED AS AMENDED.
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VERSUS
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ROSELLE JONES
1rmnrI Irl 111 111111 I1IqIrr;
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avor of Carr and against Jones in the amount of $49,810.00 and would affirrZ
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that the nature of his contractual relationship with Jones was an open account pursuant La. R.S. 9.-278 1. 1
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
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 * rofessional services,. inclu in g-bu-not t limite—to-legal
awmedical
services. For the purposes of this Section only, attorney fees shall be paid on open accounts owed to the state.
1 In his petition, Carr alleged that he was due compensation from Jones on open account, and the parties addressed this issue in the joint pre- trial order submitted to the trial court. Thus, the issue was properly before the trial court. 2 The evidence at trial established that Carr made written demand upon Jones, who failed to pay. See La. R.S. 9: 2781( A).
I
E. As used in this Section the following terms shall have the following meanings:
2) " Reasonable attorney fees" means attorney fees incurred before M•' and after •+ if the judgment creditor is required to enforce the judgment through a writ of fieri facias, writ of seizure and sale, judgment debtor examination, garnishment, or other postjudgment • process.
services are recurrently granted over a period of time. Signlite, Inc. v. Northshol Service Center, Inc., 2005- 2444 ( La. App. Ist Cir. 2/ 9/ 07), 959 SO. 2d 904, 901
Any account" as used in La. R.S. 9:2781 means literally any account and
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It is undisputed that a written contract existed between Jones and Carr
that Carr satisfied his burden of proving the existence of an oral agreement with Jones for services rendered by Carr from August 2012 through April 2014. WheM
existence and ternis • the contract by at least one credible witness and :• corroborating circumstances. Barges Unlimited Inc. v. Morgan City Stevedores,
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LLC, 1!• ( La. App. lst Cir. 2/ 2/ 23), So. 3d 2023 WL 1463263, " 1 To meet this burden of proof, a party to the contract may be his own witness and only general corroboration is required from another source. It is not necessary tha the plaintiff offer independent proof of every detail. Suire v. Lafayette City -Parish
01837 ( La. 1/ 14/ 20), 291 So. 3d 682. Text messages and emails generated by the 1 46 I "Il' i i i 1 1 11
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circumstances" sufficient to establish an oral contract between the parties. Id.
Additionally, prior contracts between the parties may corroborate the testimony of one of them concerning the making of another contract by the same parties. Price
valid contract may exist between the parties, although there was no express
agreement as to price. Tallulah Construction, -Inc. v. Northeast Louisiana Delta
225, 233.
receiving emails to/ from Jones and other individuals associated with the pending fire insurance appraisal process. Carr testified that after Au9ust 2012, he tried to q: 111111 1 1111111 r 1
Carr 's testimony that he continued to provide services to Jones for this purpose, with
with particular individuals. Jones also asked Carr to meet on several occasions
during this time to discuss various issues related to the appraisal. It is evident that
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Carr testd that in early 2013, Jones terminated the appraisal process and asked him to transition his services from being an appraiser to something elsQ
zpeak to her attorney, Anthony Maska, concerning the Chubb claim. Jones' s Apr2 EIRWIGIRMSM.
agreement existed between the parties and demonstrates that Jones intende(l understood, and agreed that Carr would continue to provide services, in son B-
Notably, on appeal, Jones " does not dispute that [ Carr] provided expert opinion
I also find that the parties' October 2009 contract, as well as their prior
working relationship concerning Jones' s claim against Chubb for damage to h(M home following Hurricane Katrina, bolsters the finding that an oral agreement existed between the parties. See Price Farms, Inc., 42 So. 3 d at 1105.
Since Carr successfully established that written and oral agreements existed with Jones, it must next be determined whether the facts support a finding that Carr' s
to determine if a contract falls under the open account statute: ( 1) whether the total
between the parties existed, ( 3) whether one party extended a line of credit tM
another, ( 4) whether there are running or current dealingsl and (5) whether there ail I I
expectations of future dealings. However, the open account statute does not requiml, multiple transactions or for parties to anticipate future transactions. Louisiana
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A majority of these considerations are satisfied here. When the parties first
entered the written contract in October 2009, they agreed to Carr' s hourly rate of 4300.00, but they never set a total price for the work • services to be performed b: Carr. The total amount was undetermined. Over the next several years, Carr
continuously provided services to Jones in connection with her fire insurance claim and kept contemporaneous time and billing records. Carr provided Jones with aM invoice in February 2011, which reflected charges from October 2009 ( mistakenla logged by Carr as September 2009) through February 2011. Although Jones did not
submit payment, Carr continued to perform work and rendered services for Jones' s
miff1.
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Jamtiff purchased materials and ixed the defendant' s roof while keeping a tabulation of what was owed. Thus, the plaintiff performed the work while
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while keeping a tabulation of the time spent and amounts owed by Jones. Finall:,J as previously noted, the parties engaged in other, on-going business transactions
claim.
A reasonable price for services rendered by Carr to Jones from August 2012 to April 2014 is the final determination to be made in Carr' s suit on open accourfl
interpretation, shall supply the missing price. The technique or measure used to
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establish the price varies according to the circumstances of each case. The methcI v. amounts to the fair market value for the goods
or reasonable value for the services that were the object of the contract. Tallulag II 111 1 SUNNI M
prior agreement to a price of $48. 00 per square foot to determine that $ 38. 83 arUmc
42.03 per square foot were fair and reasonable prices for the oral constructiom
300. 00 per hour and in one- tenth of an hour increments-, however, she offered no evidence at trial to support her assertions. Instead, the
ctober 2009 contract signed by Jones, agreeing to pay Carr $ 300.00 per hour fci ppraisal work in connection with her fire insurance claim was the only evidencE-
and the nature of his work shifted from appraiser to expert during the course of tl!
determination that $ 300.00 per hour was a reasonable rate for the services rendered
by Carr to Jones through April 2014.'
is penal in nature and must strictly construed. A claimant must strictly comply with the requirements of subsection ( A) to recover attorney fees by, among other things, making written demand " correctly setting forth the amount owed." La. R.1 2871( A); FrankL, fro rRadio, Inc. v. Black GoldMarine, Inc., 449 So. 2d 1014,
3 Carr testified that his billing account records were kept in the course of his business, and he testified as to the bill' s accuracy, which the trial court found credible. Once this prima facie case was established, the burden shifted to Jones to prove the inaccuracy of the account or to prove that she was entitled to certain credits. Tri -Parish Electrical Supply, Inc., 105 So. 3d at 1039. The trial court concluded that Carr overbilled Jones by 1. 75 hours and reduced his damages accordingly.
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9.-2781 because the written demand included interest charges, which the court of
appeal found were not owed). See Cook v. O' Pry, 448 So.2d 891, 892 ( La. App. 3d 31111111111;
rofMUG MIS %TO Mgma 111111 M.WOMMM
the demand letter included the amount due on an invoice,, which the court of appeiM
demand to Jones stated that $ 50, 335. 00 was the amount due-,however, the trial court
with the majority' s modification of the trial court' s judgment to limit the award of
Miss Bee' s Snoworld, LLC v. Guidry, 2020- 0946 ( La. App. I st Cir. 6/ 18/ 21), 328
I IIIIIIIIII11I ; 11; 111 Iv I L-