Harold A. Asher, CPA, LLC v. Haik

116 So. 3d 720, 2012 La.App. 4 Cir. 0771, 2013 WL 1460163, 2013 La. App. LEXIS 742
CourtLouisiana Court of Appeal
DecidedApril 10, 2013
DocketNo. 2012-CA-0771
StatusPublished
Cited by27 cases

This text of 116 So. 3d 720 (Harold A. Asher, CPA, LLC v. Haik) 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
Harold A. Asher, CPA, LLC v. Haik, 116 So. 3d 720, 2012 La.App. 4 Cir. 0771, 2013 WL 1460163, 2013 La. App. LEXIS 742 (La. Ct. App. 2013).

Opinion

TERRI F. LOVE, Judge.

11 This appeal arises from a dispute on an open account. After the plaintiff was granted a default judgment for $12,470.00, plus interest, costs, and attorney’s fees, the defendant alleged that she was not properly served with the petition on an open account because her street address was misspelled by one letter. The defendant then filed a petition to annul judgment, which the trial court dismissed. We find that the trial court did not err in dismissing the petition to annul judgment because the evidence did not support the defendant’s contentions. The defendant received a demand letter by certified mail addressed to the misspelled street name as requested in the citation. In addition, service was attempted and no testimony or documentary evidence was given at trial to support that the defendant was travelling on the dates as alleged in her petition. Therefore, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Diana Wilson Haik, M.D., retained the forensic accounting services of Harold A. Asher, CPA, LLC, (referred to as “Mr. Asher”) for use during her divorce proceedings. On March 24, 2004, Mr. Asher mailed Dr. Haik an agreement on services, which read as follows:

I will require a $5,000 payment in order to commence services. My fee for these services is $265 |2per hour, plus out-of-pocket costs. Availability for court time and depositions is $500 per hour. Fees are adjusted annually each January. You will be billed on a monthly basis and invoices are payable upon presentation. I reserve the right to discontinue services if fees are not paid as due.
This agreement constitutes the entire agreement made between the parties hereto, and it may be amended only by a document in writing, signed by the parties hereto.

Dr. Haik signed the agreement on March 30, 2004. A February 28, 2007 letter from Mr. Asher’s office to Dr. Haik detailing past accounting fees, as well as billing information, provided:

As requested, the amount paid by you in 2006 for accounting fees totals $24,054 (see attached schedule).
I also spoke with Mr. Asher regarding the billing issue we discussed today. He advised me that he agrees to charge you $250 per hour through February 28, 2007. However, effective March 1, 2007 the fee for services rendered by Mr. Asher [sic] your behalf will increase to $275 per hour.
On January 1, 2007 his standard hourly rate increased to $325. He has agreed to continue to discount your hourly rate and extend a $50 per hour reduction.

By 2009, Dr. Haik was allegedly indebted to Mr. Asher. On March 25, 2009, counsel for Mr. Asher mailed Dr. Haik a formal demand letter utilizing certified mail to:

Diana Haik, MD
8 Ravenne Lane
Natchez, MS 39120

[723]*723The demand letter, which it is undisputed that Dr. Haik received, alleged that Dr. Haik owed Mr. Asher $12,470.00. Invoices were attached to the demand letter that indicated that Mr. Asher’s rate was $350 per hour. The demand letter indicated that if the amount owed was paid within thirty days, “no further action will be Istaken.” However, the letter stated that “[i]f payment is not received within thirty days, suit will be filed for the full amount due along with costs and attorneys [sic] fees as provided by law.” Dr. Haik signed the certified mail receipt confirming her receipt of this letter with the address of “Ravenne Lane.”

Dr. Haik failed to tender payment within thirty days of the demand letter. Mr. Asher then filed a petition on open account against Dr. Haik alleging that she failed to pay for $12,470.00 in forensic accounting services. Mr. Asher mailed Dr. Haik, via certified mail,1 a copy of the petition on open account on May 27, 2009. However, after three unsuccessful delivery attempts, the certified mail was marked unclaimed and returned. Mr. Asher then e-mailed the petition on open account to Dr. Haik’s sister-in-law, Suzanne Haik Terrell, Esq. Attorney Terrell initially replied to the demand letter, on behalf of Dr. Haik, in an effort to resolve the billing dispute.

Mr. Asher filed a motion for default against Dr. Haik for the unpaid services. The trial court granted the preliminary default. Dr. Haik did not file an answer or other responsive pleadings after the entry of the preliminary default. The trial court then confirmed the default judgment and issued a judgment against Dr. Haik in the amount of $12,470.00, plus interest from the date of judicial demand, and all costs of the proceeding. The trial court also ordered that Dr. Haik pay $1,200.00 in attorney’s fees.

Dr. Haik then filed a petition to annul judgment asserting that she was not properly served with the petition on the open account prior to the preliminary default and prior to confirming the default judgment. Dr. Haik also averred that |4she was travelling on the three days that service of the petition on the open account was attempted. Following contentious issues with discovery and the trial on the petition to annul judgment, the trial court dismissed the petition to annul judgment with prejudice and ordered each party to pay their own costs. Mr. Asher filed a petition for garnishment and requested the issuance of a writ of fieri facias. Dr. Haik’s appeal followed.

Dr. Haik asserts that the trial court erred in finding that she was properly served and contends that evidence demonstrates that Mr. Asher’s hourly rate was too high due to fraud or ill practice.

STANDARD OF REVIEW

When reviewing questions of fact as determined by the factfinder, be it a jury or a judge, appellate courts utilize the manifest error or clearly wrong standard of review. Sassone v. Doe, 11-1821, pp. 2-3 (La.App. 4 Cir. 5/23/12), 96 So.3d 1243, 1245. “[A]n appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong, and where two permissible views of the evidence exist, the fact finder’s choice between them cannot be manifestly erroneous or clearly wrong.” Sassone, 11-1821, p. 3, 96 So.3d at 1245. In order to reverse findings of the factfinder, “an appellate court must undertake a two-part inquiry: (1) the court must find from the record that a reasonable factual basis [724]*724does not exist for the finding of the trier of fact; and (2) the court must further determine the record establishes the finding is clearly wrong.” S.J. v. Lafayette Parish Sch. Bd., 09-2195, p. 12 (La.7/6/10), 41 So.3d 1119, 1127. The Louisiana Supreme Court explained this Court’s role as follows:

[ultimately, the issue to be resolved by the reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder’s conclusion was a reasonable Rone. Id. If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 882-883. Accordingly, where there are two permissible views of the evidence, the fact-finder’s choice between them cannot be manifestly erroneous. Id. at 883.

S.J., 09-2195, pp. 12-13, 41 So.3d at 1127.

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Bluebook (online)
116 So. 3d 720, 2012 La.App. 4 Cir. 0771, 2013 WL 1460163, 2013 La. App. LEXIS 742, Counsel Stack Legal Research, https://law.counselstack.com/opinion/harold-a-asher-cpa-llc-v-haik-lactapp-2013.