Industrial Screw & Supply Co. v. WPS, Inc.

926 So. 2d 134, 2006 La. App. LEXIS 730, 2006 WL 861751
CourtLouisiana Court of Appeal
DecidedApril 5, 2006
DocketNo. 05-1188
StatusPublished
Cited by1 cases

This text of 926 So. 2d 134 (Industrial Screw & Supply Co. v. WPS, Inc.) 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
Industrial Screw & Supply Co. v. WPS, Inc., 926 So. 2d 134, 2006 La. App. LEXIS 730, 2006 WL 861751 (La. Ct. App. 2006).

Opinion

AMY, Judge.

hln this suit on an open account, the plaintiff filed a motion for summary judgment to collect a delinquent debt, legal interest, court costs, and attorney’s fees. The trial court granted the motion. The defendant appeals the trial court’s award of attorney’s fees. For the following reasons, we affirm.

Factual and Procedural Background

The record indicates that the plaintiff, Industrial Screw and Supply Co., Inc. (hereinafter “Industrial”), sold and delivered to the defendant, WPS Inc. (hereinafter “WPS”), anchors and bolts on open account between May and June 2004. After WPS did not respond to Industrial’s initial demand for payment, Industrial filed a Petition in Suit on Open Account on November 17, 2004, stating that WPS owed it “$26,020.86 together with judicial interest, court costs and reasonable attorney’s fees[.]” It further stated that “[t]he Defendant has made only the payments, if any, shown on the attached statement, and has failed to pay this account, or the balance thereon after demand. Defendant additionally owes petitioner reasonable attorney fees under the provisions of Louisiana R.S. 9:2781.” In the final paragraph of its petition, Industrial prayed “for the sum of $27,817.60, together with legal interest until paid, court costs and reasonable attorney fees.”

In December 2004, WPS made a payment on the unpaid account balance in the amount of $6,954.00. In its answer, WPS denied that it owed $27,187.60 or reasonable attorney’s fees. On March 4, 2005, Industrial filed a motion for summary judgment, along with a memorandum in support of the motion and an affidavit from its account representative. WPS subsequently presented Industrial with a check for $7,271.06 and a check for $11,795.40 to pay the account balance in full.

| gAfter an April 19, 2005 hearing, the trial court granted the motion for summary judgment, awarding “judicial interest on defendant’s debt due on open account in the amount of $26,020.86 from date of judicial demand until finally paid, attorney fees deemed reasonable by this court in the amount of 25% or more specifically $6,505.22, and for all costs of these proceedings.” An amended summary judgment determined that the amount of interest owed was $385.01.

WPS appeals, designating the following assignments as error:

1. The Court erred by considering the Memoranda of counsel and exhibits [136]*136attached thereto as soureefs] of evidence on which to base its decision.
2. The Court erred in finding that no genuine issue of material fact existed and that Plaintiff was entitled to a judgment as a matter of law.
3. The Court erred in awarding attorney’s fees where the demand in the attorney’s demand letter and in the Petition were for more than the Plaintiff was owed[,] thereby not complying with [La.JR.S. 9:2781.
4. The Court erred in finding 25% attorney fees “reasonable” without any evidence to support that finding.
5. The Court erred in using an untimely filed Affidavit attached to a “Pre-hearing Memorandum in Support of Motion for Summary Judgment” as support to award 25% attorney fees to Plaintiff over Defendant’s objection that the assertion of the agreement between client and attorney to pay 25% expanded the pleadings in that it was not pled in the Petition.
6. The Court erred in granting the Plaintiffs Motion for Summary Judgment for attorney fees when there were genuine issues of fact related to the level and amount of legal services sufficient to justify an award of 25% attorney fees that the Defendant’s attorney protested was excessive.
7. The Court erred in applying the provisions of [La.]R.S. 9:2781 in determining that the Plaintiff was entitled to reasonable attorney’s fees and/or attorney fees fixed at 25% of the amount awarded based solely on an agreement between the Plaintiff and its attorney instead of using the analysis provided for by the Rules of | ^Professional Conduct as set forth in Leenerts Farms, Inc. v. Rogers[, 421 So.2d 216 (La.1982)].

Discussion

Louisiana Revised Statutes 9:2781

WPS questions the granting of summary judgment in favor of Industrial, asserting that attorney’s fees were inappropriately awarded under La.R.S. 9:2781. In particular, WPS points to Industrial’s initial demand letter which, it asserts, sets forth an allegedly inaccurate figure as the amount due. In support of its argument, WPS cites City of Bossier City v. Sims, 486 So.2d 1122 (La.App. 2 Cir.1986), wherein the second circuit concluded that attorney’s fees were inappropriate under La. R.S. 9:2781 where a demand letter failed to correctly set forth the amount owed.

Louisiana Code of Civil Procedure Article 966(B) provides that a motion for summary judgment shall be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” On appeal, summary judgments are considered under the de novo standard of review. Champagne v. Ward, 03-3211 (La.1/19/05), 893 So.2d 773. The appellate court considers the same criteria as did the trial court. Id.

With regard to open accounts, La.R.S. 9:2781 provides for the award of attorney’s fees 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. Citation and service of a petition shall be deemed [137]*137written demand for the purpose of this Section. If the claimant and his attorney have expressly agreed that the debt- or shall be liable for the claimant’s attorney fees in a fixed or determinable amount, the claimant is entitled to that amount 14when judgment on the claim is rendered in favor of the claimant. Receipt of written demand by the person is not required.
B. If the demand is forwarded to the person by first class mail to his last known address, a copy of the demand shall be introduced as evidence of written demand on the debtor.
C. If the demand is made by citation and service of a petition, the person shall be entitled to pay the account without attorney fees by delivering payment to the claimant or the claimant’s attorney within ten days after service of the petition in city courts and fifteen days after service of the petition in all other courts.

WPS questions the award of attorney’s fees as, it contends, Industrial’s demand letter of September 30, 2004 alleged an unpaid account balance of $27,036.98. Since WPS asserts that this figure is in error, it argues that the demand did not correctly set forth the amount owed as is required for the recovery of attorney’s fees under La.R.S. 9:2781(A). Thus, the award of attorney’s fees was in error.

Our review of Industrial’s motion for summary judgment and its supporting documents indicates that summary judgment was appropriate.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
926 So. 2d 134, 2006 La. App. LEXIS 730, 2006 WL 861751, Counsel Stack Legal Research, https://law.counselstack.com/opinion/industrial-screw-supply-co-v-wps-inc-lactapp-2006.