Gulf City Seafoods, Inc. v. Oriental Foods, Inc.

986 So. 2d 974, 2007 Miss. App. LEXIS 771, 2007 WL 4111418
CourtCourt of Appeals of Mississippi
DecidedNovember 20, 2007
Docket2006-CA-00987-COA
StatusPublished
Cited by3 cases

This text of 986 So. 2d 974 (Gulf City Seafoods, Inc. v. Oriental Foods, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gulf City Seafoods, Inc. v. Oriental Foods, Inc., 986 So. 2d 974, 2007 Miss. App. LEXIS 771, 2007 WL 4111418 (Mich. Ct. App. 2007).

Opinion

986 So.2d 974 (2007)

GULF CITY SEAFOODS, INC., Appellant
v.
ORIENTAL FOODS, INC., Appellee.

No. 2006-CA-00987-COA.

Court of Appeals of Mississippi.

November 20, 2007.
Rehearing Denied April 22, 2008.

*976 John G. Clark, Attorney for Appellant.

J. Paul Clinton, Attorney for Appellee.

Before KING, C.J., CHANDLER and CARLTON, JJ.

KING, C.J., for the Court.

¶ 1. Gulf City Seafoods, Inc. appeals from a judgment in favor of Oriental Foods, Inc., in the amount of $102,385, including prejudgment interest and attorney's fees. On appeal, Gulf City raises the following issues: (1) whether the trial court erred in awarding attorney's fees; (2) whether the trial court's award of attorney's fees was excessive and unreasonable; and (3) whether the trial court erred in awarding pre-judgment interest. Finding no error, we affirm.

FACTS

¶ 2. On October 23, 2004, Oriental Foods filed a complaint against Gulf City Seafoods, alleging Gulf City owed $71,043.40, in principal, on an open account. On February 10, 2005, Oriental filed a motion for summary judgment. Gulf City responded to the motion by arguing that Oriental's requested judgment amount did not accurately reflect the amount Gulf City owed to Oriental. While Oriental alleges that Gulf City Seafood owed $71,043.35 in principal, Gulf Seafood argued that the amount should have been $71,008.05 — a difference of $35.40.

¶ 3. The trial court denied the motion for summary judgment based on the parties' competing affidavits regarding the balanced owed. On July 26, 2005, Oriental filed an amended motion for summary judgment. This time, Oriental adopted Gulf Seafoods' affidavit of the balance owed, giving Gulf Seafoods a credit of $35.40.

¶ 4. The court granted the amended motion for summary judgment. The court awarded Oriental Foods a judgment of $102,385.20. This figure included $71,008.05 (principal), $7,731.47 (pre-judgment interest calculated according to the actuarial method), and $23,645.68 (attorney's fees of one-third of the judgment). On February 8, 2006, the final judgment for these sums was entered.

¶ 5. On February 17, 2006, Gulf City filed post-judgment motions under Rules 52 and 59 of the Mississippi Rules of Civil *977 Procedure. Gulf City asserted that the court did not address the issue of Oriental's failure to correctly state the amount owed in the demand letter, as required by the open account statute. Gulf City argued that Oriental was not entitled to attorney's fees because of this failure to correctly state the amount owed in the demand letter.

¶ 6. The court denied Gulf City's post-judgment motions, finding the motions were not well taken.

STANDARD OF REVIEW

¶ 7. This Court reviews a trial court's award of attorney's fees and pre-judgment interest under an abuse of discretion standard. In re Gillies v. Gillies, 830 So.2d 640, 644(¶ 15) (Miss.2002); Theobald v. Nosser, 784 So.2d 142, 145(¶ 7) (Miss.2001).

ANALYSIS

I. Whether the trial court erred in awarding attorney's fees.

¶ 8. Parties prevailing in a suit on an open account are entitled to attorney's fees pursuant to Section 11-53-81 of the Mississippi Code Annotated (Rev.2002), which reads, in pertinent part, as follows:

When any person fails to pay an open account within thirty (30) days after receipt of written demand thereof correctly setting forth the amount owed and an itemized statement of the account in support thereof, that person shall be liable for reasonable attorney's fees to be set by the judge for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the plaintiff [. . . .] If that person sued on the open account shall prevail in the suit, he shall be entitled to reasonable attorney's fees to be set by the judge.

¶ 9. Since the award of attorney's fees is a derogation of common law, courts must strictly construe the attorney's fees on the open accounts statute. Magnolia Farm Servs., Inc. v. Tunica Oil Co., 438 So.2d 285, 288 (Miss.1983). Gulf City argues that the trial court erred in awarding attorney's fees to Oriental Foods because Oriental failed to strictly comply with the statute's requirements. Gulf City does not dispute that it failed to pay Oriental on an open account within thirty days after receiving the demand letter and an itemized statement of the account. Instead, Gulf City asserts that Oriental's demand letter did not correctly state the amount Gulf City owed on the open account.

¶ 10. Oriental requested $73,043.45, in principal, in its demand letter but later, Oriental's complaint stated that the principal was $71,043.43 — a difference of $2,000.02. Oriental attributed this difference to payments received by Gulf City from Oriental in the interim between the date the demand letter was prepared and the date the complaint was filed.

¶ 11. Gulf City responded to the motion for summary judgment, alleging Oriental did not properly credit its August 3, 2004 payment and that the correct principal due was $71,008.05 — a difference of $35.38. Oriental filed an amended motion for summary judgment, adopting Gulf City's affidavit that the disputed principal was $71,008.05.

¶ 12. Gulf City argues that Oriental's adoption of Gulf City's affidavit is an admission that the principal requested in the demand letter differed from the principal requested in the complaint by $2,035.40. Gulf City argues that because the demand letter did not correctly state the amount owed, as required by the open accounts statute, it precluded the court from awarding attorney's fees.

¶ 13. Gulf City cites many cases that support the general principal that the open *978 accounts statute must be strictly construed: Rainbow Rental & Fishing Tools, Inc. v. Delta Underground Storage, Inc., 542 So.2d 258, 263 (Miss.1989) (a creditor may not recover attorney's fees under the statute if it has failed to prevail on any disputed matter); Hughes Equipment Co. v. Fife, 482 So.2d 1144, 1147 (Miss.1986) (judgment must be rendered in favor of defendant and against the plaintiff to constitute a defendant as a prevailing party); and Putt v. Ray Sewell Co., Inc., 481 So.2d 785, 787 (Miss.1985) (notice and demand in the form of complaint or lawsuit will not suffice for statute's requirement that written notice be sent to the debtor thirty days prior to filing suit).

¶ 14. Gulf City also argues that this Court should consider Louisiana law on the matter. Mississippi courts have acknowledged that Louisiana law is persuasive on collection of attorney's fees in open accounts since Louisiana's open account statute, found in Louisiana Revised Statute Annotated Section 9:2781 (West 2005), served as the model for the original Mississippi House Bill. Magnolia Farms Svcs., 438 So.2d at 287. The Louisiana statute reads, in pertinent part, as follows:

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 [. . . .]

La.Rev.Stat. Ann. § 9:2781 (West 2005).

¶ 15. Gulf City urges the Court to adopt Louisiana's strict compliance with the demand letter requirement, as evidenced in Frank L.

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Bluebook (online)
986 So. 2d 974, 2007 Miss. App. LEXIS 771, 2007 WL 4111418, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gulf-city-seafoods-inc-v-oriental-foods-inc-missctapp-2007.