STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
08-1523
CREDIT BUREAU SERVICES
VERSUS
STEVEN C. LUNDBERG
************
APPEAL FROM THE ALEXANDRIA CITY COURT, PARISH OF RAPIDES, NO. 100,658 HONORABLE RICHARD E. STARLING, JR. CITY COURT JUDGE
JIMMIE C. PETERS JUDGE
Court composed of Oswald A. Decuir, Jimmie C. Peters, and Shannon J. Gremillion, Judges.
AFFIRMED AS AMENDED.
Field V. Gremillion, III Post Office Box 731 Alexandria, LA 71309 (318) 445-6021 COUNSEL FOR PLAINTIFF/APPELLANT: Credit Bureau Services
James B. Reichman Post Office Box 210 Alexandria, LA 71309 (318) 442-3419 COUNSEL FOR DEFENDANT/APPELLEE: Steven C. Lundberg PETERS, J.
The plaintiff, Credit Bureau Services (Credit Bureau), appeals portions of the
judgment entered in its favor against the defendant, Steven J. Lundberg. In its appeal,
Credit Bureau seeks an increase in the amount of the judgment awarded and a reversal
of the trial court’s denial of its request for attorney fees. For the following reasons,
we amend the trial court award from $17,008.50 to $27,978.50 and affirm the
judgment as amended.
DISCUSSION OF THE RECORD
The underlying facts giving rise to this litigation are not in dispute. The
evidence establishes that on April 14, 2004, Mr. Lundberg presented himself to the
emergency room of the Rapides Regional Medical Center (Rapides Regional) in
Alexandria, Louisiana, complaining of severe pain from an attack of pancreatitis. He
was admitted to the hospital on that day and was discharged on April 20, 2004. His
final bill for medical services rendered over that period was $27,978.50.
On July 19, 2004, Rapides Regional assigned Mr. Lundberg’s account to Credit
Bureau for collection. The next day, July 20, 2004, Credit Bureau filed suit against
Mr. Lundberg seeking collection of the principal amount, legal interest, and statutory
attorney fees as allowed for the collection of an open account obligation. Mr.
Lundberg initially filed a general denial answer to the petition, but later amended his
answer to assert as an affirmative defense that “he did not consent to an account
arrangement with Credit Bureau Services and/or Rapides Regional Medical Center.”
Upon completion of the May 25, 2007 trial, the trial court took the matter under
advisement. On July 31, 2007, the trial court issued written reasons for judgment
finding that Mr. Lundberg “agreed to pay for treatment at least through the acute
phase of his treatment for the first three days of treatment and owes the sum of $17,008.50 as reflected in the bills submitted by the plaintiff.” The trial court further
stated that it found that the debt did not qualify as an open account and, therefore,
denied Credit Bureau’s request for statutory attorney fees.
OPINION
In its appeal, Credit Bureau asserts that the trial court erred in rejecting its
request for attorney fees and in not awarding the full amount charged for medical
services rendered.
Assignment of Error Number One
Credit Bureau argues in its first assignment of error that the trial court erred as
a matter of law in finding that the indebtedness sued upon did not qualify as an open
account obligation for which it could collect attorney fees as provided for in La.R.S.
9:2781. We agree. Louisiana Revised Statutes 9:2781(D) defines an open account
debt as follows:
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.
(Emphasis added.)
In Frey Plumbing Co., Inc. v. Foster, 07-1091, (La. 2/26/08), 996 So.2d 969,
the supreme court recently held that this statute must be applied as written. That
being the case, we conclude that the trial court erred in concluding that the obligation
sued upon was not an open account debt as defined by La.R.S. 9:2781(D).
However, determining that the trial court erred in its classification of the
obligation sued upon does not end our inquiry. We must next determine whether
2 Credit Bureau is entitled to an attorney fee award in this particular litigation. A
claimant is entitled to reasonable attorney fees when he secures a favorable judgment
on an open account if he has strictly complied with the provisions of La.R.S. 9:2781.
Scarborough v. Nelson, 371 So.2d 1261 (La.App. 3 Cir. 1979).
Louisiana Revised Statutes 9:2781(A) provides the procedure to be followed
to be successful in an attorney fee claim involving an open account, and states in
pertinent part:
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.
(Emphasis added.) The record contains no evidence of written demand on Mr.
Lundberg by Credit Bureau that would trigger the thirty day period. Additionally,
Credit Bureau offered no proof at trial of citation and service.1 That being the case,
Credit Bureau failed to prove its entitlement to an attorney fee award. For reasons
different from those expressed by the trial court, we find no merit in Credit Bureau’s
first assignment of error.
Assignment of Error Number Two
In this assignment of error, Credit Bureau asserts that the trial court erred in not
awarding judgment in the full amount charged for services rendered by Rapides
1 We recognize that citation and service information may be in the trial record and may not have been provided to this court in the appeal record because of the provisions of Uniform Rules—Courts of Appeal, Rule 2-1.11. However, the fact that documents appear in the suit record does not automatically make those documents a part of the evidentiary offering at trial.
3 Regional. That is to say, the trial court erred in concluding that Mr. Lundberg agreed
to pay for only the first three days of treatment. We agree.
The amount owing on an open account is a question of fact. Montgomery Stire
& Partners, Inc. v. London Livery, 99-3145 (La.App. 4 Cir. 9/20/00), 769 So.2d 703.
Generally, an appellate court may not set aside the factual findings of a trial court
unless there is a finding of manifest error or it is clearly wrong. Rosell v. ESCO, 549
So.2d 840 (La.1989).
Mr. Lundberg testified at trial that on April 14, 2004, he suffered an attack of
pancreatitis—an event which he had suffered from in the past. Because he was
uninsured, he initially contacted a friend who worked at the LSU Medical Center in
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
08-1523
CREDIT BUREAU SERVICES
VERSUS
STEVEN C. LUNDBERG
************
APPEAL FROM THE ALEXANDRIA CITY COURT, PARISH OF RAPIDES, NO. 100,658 HONORABLE RICHARD E. STARLING, JR. CITY COURT JUDGE
JIMMIE C. PETERS JUDGE
Court composed of Oswald A. Decuir, Jimmie C. Peters, and Shannon J. Gremillion, Judges.
AFFIRMED AS AMENDED.
Field V. Gremillion, III Post Office Box 731 Alexandria, LA 71309 (318) 445-6021 COUNSEL FOR PLAINTIFF/APPELLANT: Credit Bureau Services
James B. Reichman Post Office Box 210 Alexandria, LA 71309 (318) 442-3419 COUNSEL FOR DEFENDANT/APPELLEE: Steven C. Lundberg PETERS, J.
The plaintiff, Credit Bureau Services (Credit Bureau), appeals portions of the
judgment entered in its favor against the defendant, Steven J. Lundberg. In its appeal,
Credit Bureau seeks an increase in the amount of the judgment awarded and a reversal
of the trial court’s denial of its request for attorney fees. For the following reasons,
we amend the trial court award from $17,008.50 to $27,978.50 and affirm the
judgment as amended.
DISCUSSION OF THE RECORD
The underlying facts giving rise to this litigation are not in dispute. The
evidence establishes that on April 14, 2004, Mr. Lundberg presented himself to the
emergency room of the Rapides Regional Medical Center (Rapides Regional) in
Alexandria, Louisiana, complaining of severe pain from an attack of pancreatitis. He
was admitted to the hospital on that day and was discharged on April 20, 2004. His
final bill for medical services rendered over that period was $27,978.50.
On July 19, 2004, Rapides Regional assigned Mr. Lundberg’s account to Credit
Bureau for collection. The next day, July 20, 2004, Credit Bureau filed suit against
Mr. Lundberg seeking collection of the principal amount, legal interest, and statutory
attorney fees as allowed for the collection of an open account obligation. Mr.
Lundberg initially filed a general denial answer to the petition, but later amended his
answer to assert as an affirmative defense that “he did not consent to an account
arrangement with Credit Bureau Services and/or Rapides Regional Medical Center.”
Upon completion of the May 25, 2007 trial, the trial court took the matter under
advisement. On July 31, 2007, the trial court issued written reasons for judgment
finding that Mr. Lundberg “agreed to pay for treatment at least through the acute
phase of his treatment for the first three days of treatment and owes the sum of $17,008.50 as reflected in the bills submitted by the plaintiff.” The trial court further
stated that it found that the debt did not qualify as an open account and, therefore,
denied Credit Bureau’s request for statutory attorney fees.
OPINION
In its appeal, Credit Bureau asserts that the trial court erred in rejecting its
request for attorney fees and in not awarding the full amount charged for medical
services rendered.
Assignment of Error Number One
Credit Bureau argues in its first assignment of error that the trial court erred as
a matter of law in finding that the indebtedness sued upon did not qualify as an open
account obligation for which it could collect attorney fees as provided for in La.R.S.
9:2781. We agree. Louisiana Revised Statutes 9:2781(D) defines an open account
debt as follows:
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.
(Emphasis added.)
In Frey Plumbing Co., Inc. v. Foster, 07-1091, (La. 2/26/08), 996 So.2d 969,
the supreme court recently held that this statute must be applied as written. That
being the case, we conclude that the trial court erred in concluding that the obligation
sued upon was not an open account debt as defined by La.R.S. 9:2781(D).
However, determining that the trial court erred in its classification of the
obligation sued upon does not end our inquiry. We must next determine whether
2 Credit Bureau is entitled to an attorney fee award in this particular litigation. A
claimant is entitled to reasonable attorney fees when he secures a favorable judgment
on an open account if he has strictly complied with the provisions of La.R.S. 9:2781.
Scarborough v. Nelson, 371 So.2d 1261 (La.App. 3 Cir. 1979).
Louisiana Revised Statutes 9:2781(A) provides the procedure to be followed
to be successful in an attorney fee claim involving an open account, and states in
pertinent part:
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.
(Emphasis added.) The record contains no evidence of written demand on Mr.
Lundberg by Credit Bureau that would trigger the thirty day period. Additionally,
Credit Bureau offered no proof at trial of citation and service.1 That being the case,
Credit Bureau failed to prove its entitlement to an attorney fee award. For reasons
different from those expressed by the trial court, we find no merit in Credit Bureau’s
first assignment of error.
Assignment of Error Number Two
In this assignment of error, Credit Bureau asserts that the trial court erred in not
awarding judgment in the full amount charged for services rendered by Rapides
1 We recognize that citation and service information may be in the trial record and may not have been provided to this court in the appeal record because of the provisions of Uniform Rules—Courts of Appeal, Rule 2-1.11. However, the fact that documents appear in the suit record does not automatically make those documents a part of the evidentiary offering at trial.
3 Regional. That is to say, the trial court erred in concluding that Mr. Lundberg agreed
to pay for only the first three days of treatment. We agree.
The amount owing on an open account is a question of fact. Montgomery Stire
& Partners, Inc. v. London Livery, 99-3145 (La.App. 4 Cir. 9/20/00), 769 So.2d 703.
Generally, an appellate court may not set aside the factual findings of a trial court
unless there is a finding of manifest error or it is clearly wrong. Rosell v. ESCO, 549
So.2d 840 (La.1989).
Mr. Lundberg testified at trial that on April 14, 2004, he suffered an attack of
pancreatitis—an event which he had suffered from in the past. Because he was
uninsured, he initially contacted a friend who worked at the LSU Medical Center in
Pineville, Louisiana,2 who informed him that going to that facility would be a waste
of time because, given the hospital’s situation at that time, he would simply be
diverted to another hospital. Based on this information, he chose to go to the
emergency room at Rapides Regional.
As a part of the Rapides Regional admission procedure, Mr. Lundberg signed
a document entitled “CONDITIONS OF ADMISSION AND AUTHORIZATION
FOR MEDICAL TREATMENT,” a copy of which was introduced into evidence at
trial. The document itself is a two-page document divided into various categories of
agreement. Unfortunately, the only material legible on the copy of this pre-printed
2 The LSU Medical Center in Pineville, Louisiana, is a part of Louisiana’s charity hospital system.
4 form introduced into evidence are the category titles.3 Nothing can be derived from
the text following the category titles.
Notwithstanding the illegibility of the document, Mr. Lundberg acknowledged
at trial that he probably signed it,4 but did so because he “expected to be treated
maybe for a day or two and then shipped to Huey P. Long.”5 He testified that he had
informed the hospital admission personnel that he had no medical insurance and
could not afford to be at the hospital. Mr. Lundberg also testified that if he had
known that he was not going to be transferred to a hospital in the charity system, he
would have “got up and walked out of there” because “after about the first day the
pain is gone, the only treatment for pancreatitis once they arrest the pain and put a
little infection, you know, treat the infection is you can’t eat or drink for about a week
and I can do that at home.” Based on this testimony, the trial court concluded as a
matter of fact that Mr. Lundberg understood that he would be financially obligated
for the medical services that would be rendered at Rapides Regional and agreed to be
financially liable therefor. We find no manifest error in that factual conclusion.
However, the trial court limited the amount of recovery by the hospital to three
days, apparently based on Mr. Lundberg’s assertion that treatment was not necessary
after the first day. We do find manifest error in this factual conclusion as the hospital
records establish that Mr. Lundberg daily received medical care during his hospital
3 The titles of the categories include “GENERAL,” “CONSENT PROVISIONS,” “EMERGENCY AUTHORIZATION,” “FINANCIAL AGREEMENT,” “NOTICE OF PRIVACY PRACTICES,” “LEGAL RELATIONSHIP BETWEEN HOSPITAL AND PATIENT,” “RELEASE OF INFORMATION,” “FINANCIAL RESPONSIBILITY,” “ASSIGNMENT OF BENEFITS,” and “MEDICARE PATIENT CERTIFICATION.” 4 Mr. Lundberg could not specifically recall signing the form, asserting that he was in tremendous pain at the time of admission, but he suggested that the signature on the form resembled his. 5 Huey P. Long is another name for the LSU Medical Center in Pineville, Louisiana.
5 confinement, beginning the first day of admission and continuing through the date of
his discharge.6 Accordingly, we amend the trial court judgment to increase the award
to the plaintiff to $27,978.50.
DISPOSITION
For the foregoing reasons, we amend the trial court judgment to award Credit
Bureau Services the sum of $27,978.50. We affirm the trial court judgment rejecting
Credit Bureau Services’ request for attorney fees, but for reasons different from that
expressed by the trial court. We assess all costs of this appeal equally between
Steven C. Lundberg and Credit Bureau Services.
6 Interestingly, Mr. Lundberg on the one hand asserts that he needed no medical treatment after the first day and, on the other hand, does not contest the hospital’s statement reflecting continued treatment in the days that followed.