Louisiana Mobile Imaging, Inc. v. Ralph L. Abraham, Jr., Inc.

21 So. 3d 1079, 2009 La. App. LEXIS 1757, 2009 WL 3273243
CourtLouisiana Court of Appeal
DecidedOctober 14, 2009
DocketNo. 44,600-CA
StatusPublished
Cited by5 cases

This text of 21 So. 3d 1079 (Louisiana Mobile Imaging, Inc. v. Ralph L. Abraham, Jr., 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
Louisiana Mobile Imaging, Inc. v. Ralph L. Abraham, Jr., Inc., 21 So. 3d 1079, 2009 La. App. LEXIS 1757, 2009 WL 3273243 (La. Ct. App. 2009).

Opinion

STEWART, J.

|, Defendant/Appellant, Ralph L. Abraham, Jr., Inc. (“Abraham”), is appealing a judgment granted in favor of Plaintiff/Ap-pellee, Louisiana Mobile Imaging, Inc. (“LMI”). For the reasons discussed below, we affirm the trial court’s judgment.

FACTS

In this case, LMI is seeking to recover unpaid funds in the amount of $14,528.86 from Abraham pursuant to an agreement whereby LMI provided its ultrasound equipment to Abraham to be used in his medical office. According to the terms of the agreement, Abraham would bill an insurance carrier or Medicare for both his services to the patient and for the use of LMI’s ultrasound machine. Once Abraham received payment, he would keep the amount due for his services and remit the sums due for the use of the ultrasound to LMI.

On September 1, 1998, LMI transferred any rights it may have had in the ultrasound equipment to Consolidated Medical Management, Inc. (“CMM”) via an asset purchase agreement.

For reasons not clear from the record, the amounts alleged to be due for use of the ultrasound equipment from September 24, 1999, to October 9, 1999, were not remitted by Abraham to the appropriate party.

On June 13, 2006, LMI filed a petition for a concursus proceeding. It sought to require Abraham to deposit the funds at issue into the court’s registry and allow all interested parties the opportunity to seek recovery of those funds. LMI based its claim on an agreement dated August 22, 2007, whereby CMM assigned, transferred, and conveyed to it, for consideration |2in the amount of $10.00, all rights stemming from the original agreement to any money being held by Abraham that arose from the use of the ultrasound machine.

Abraham filed dilatory exceptions of unauthorized use of a summary proceeding and lack of procedural capacity and peremptory exceptions of res judicata, no cause of action and no right of action in response to LMI’s petition. The trial court sustained Abraham’s dilatory exception of improper use of summary proceeding and gave LMI ten days to amend the pleading to cure the defect subject to dismissal. The remaining exceptions were held in abeyance pending the amendment. LMI subsequently filed an amended petition that eliminated the concursus language.

Abraham disputed LMI’s claim to the funds. He filed an exception of prescription, arguing that the claim was subject to the three-year liberative period pursuant to La. C.C. art 3494. Abraham also dis[1081]*1081puted the validity of the August 22, 2007 assignment of rights from CMM to LMI and the amount alleged to be due.

The trial for this case took place on October 2, 2008. Since the matter had been essentially tried in a previous case, the parties in this case offered evidence adduced in the matter of Ralph L. Abraham v. North End Farms, that was heard in the Fifth Judicial District Court on October 6, 2005. In that matter, Abraham filed suit to recover some rent that was allegedly due on a parcel of farm property. North End Farms is a Louisiana partnership, of which Cooper is a partner. North End Farms, which is a Louisiana partnership, admitted that the rent was due, but claimed as a setoff the same | ¡¿funds which are at issue in this matter. The trial court determined that no setoff was applicable due to the lack of identity of the parties.

LMI received an assignment from Cooper, who was a partner is North End Farms and has 100% interest in LMI, on June 14, 2007, where he relinquished any rights he had to payment from Abraham of amounts due pursuant to the agreement regarding the ultrasound equipment. On that same day, North End Farms clarified that LMI was the proper party to proceed against the funds. North End Farms had previously claimed an interest in the funds via assignment. Based on these assignments and the assignment from CMM to LMI, LMI asserts that it is entitled to these funds.

Testifying in Ralph L. Abraham v. North End Farms, Cooper verified his assignment explaining that “he assigned any rights that he may have against Ralph Abraham to North End Farms.” Cooper initially had a 25% interest in LMI, but ultimately acquired 100% of its interest.

In the prior proceeding, Abraham testified that he was holding sums in excess of $14,000.00 based on the advice of his attorney. He testified that the funds were attributable to the use of the ultrasound machine and were to be remitted to the owners of that machine pursuant to an agreement. He admitted that the funds held were not his property, but were being held for the benefit of others.

The trial court denied Abraham’s exception of prescription, found the written assignment was properly authenticated and admissible, and determined that LMI was entitled to recover the funds held by Abraham. The trial court noted in its reasons for judgment:

|/The defendant’s bookkeeper testified [in the prior case] without contradiction that the defendant had collected $14,528.86 for the use of the ultrasound machines, that the machine did not belong to the defendant, that these funds did not belong to the defendant, and that these monies were deposited in the defendant’s account and not paid to anyone.

LMI was awarded $14,528.86. Abraham now appeals the denial of his exception of prescription and the judgment awarding LMI the amount of $14,528.96.

LAW AND DISCUSSION

Validity of the Assignment

In Abraham’s first assignment of error, he argues that the trial court erred in ruling that the August 2007 assignment of the contract, which was from CMM to LMI, was admissible and properly authenticated. Abraham asserts that this assignment is not properly authenticated because it was not accompanied by any corporate minutes of CMM showing that the person who signed the assignment was someone with the authority to do so.

[1082]*1082The August 2007 assignment contains the following description for the rights conveyed:

... any and all rights which it have [sic] or hold [sic] in and to monies presently in the hands of Ralph L. Abraham, Jr., M.D. (A Professional Medical Corporation), which arose out of the utilization of ultrasound or imaging equipment at the office of Dr. Abraham pursuant to an original agreement between the said Ralph L. Abraham, Jr., M.D. (A Professional Medical Corporation) and Louisiana Mobile Imaging, Inc.
La. C.C. art 2642 states:
All rights may be assigned, with the exception of those pertaining to obligations that are strictly personal. The assignee is subrogated to the rights of the assignor against the debtor.

IftAn assignment is a valid transfer of rights and may be done orally. Rond v. Sims, 355 So.2d 591 (La.App. 4 Cir. 2/14/78). An oral assignment must be proved like any other fact. Id. There is no requirement in this section of the Civil Code that the assignment be in authentic form before a notary and two witnesses. Meyer v. Ullo, 627 So.2d 226 (La.App. 4 Cir 11/18/93). The ultimate debtor cannot question the validity of an assignment of a debt unless he can show prejudice. Sutton v. Lambert, 94-2301 (La.App. 1 Cir. 6/23/95), 657 So.2d 697.

David Cooper testified that LMI was the assignee of rights, which were transferred by CMM. Cooper testified that he asked Bland Greeson of CMM to obtain the assignment.

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

Related

Hansen v. River Cities Disposal Co.
245 So. 3d 213 (Louisiana Court of Appeal, 2017)
Johnson Law Firm, LLC v. Knoll
175 So. 3d 1038 (Louisiana Court of Appeal, 2015)
Johnson Law Firm, LLC v. Tina Rabalais Knoll
Louisiana Court of Appeal, 2015
South Louisiana Ethanol L.L.C. v. CHS-SLE Land
161 So. 3d 83 (Louisiana Court of Appeal, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
21 So. 3d 1079, 2009 La. App. LEXIS 1757, 2009 WL 3273243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/louisiana-mobile-imaging-inc-v-ralph-l-abraham-jr-inc-lactapp-2009.