Scofield, Gerard, Singletary & Pohorelsky, L.L.C. v. Barr

58 So. 3d 1127, 10 La.App. 3 Cir. 1347, 2011 La. App. LEXIS 290, 2011 WL 799716
CourtLouisiana Court of Appeal
DecidedMarch 9, 2011
DocketNo. 10-1347
StatusPublished

This text of 58 So. 3d 1127 (Scofield, Gerard, Singletary & Pohorelsky, L.L.C. v. Barr) 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
Scofield, Gerard, Singletary & Pohorelsky, L.L.C. v. Barr, 58 So. 3d 1127, 10 La.App. 3 Cir. 1347, 2011 La. App. LEXIS 290, 2011 WL 799716 (La. Ct. App. 2011).

Opinions

PAINTER, Judge.

| iPlaintiff, the law firm of Scofield, Gerard, Singletary, and Pohorelsky, L.L.C. (The Scofield Firm), filed suit against Defendant, Thomas Barr, IV (Barr), to recover unpaid legal fees. The trial court granted summary judgment in favor of Plaintiff, and Defendant appealed. Plaintiff filed an answer to the appeal, seeking damages for frivolous appeal and additional attorney’s fees. For the following reasons, we affirm the trial court’s judgment and decline to award any damages for frivolous appeal or additional attorney’s fees.

FACTUAL AND PROCEDURAL BACKGROUND

In 2008, Barr retained the Scofield Firm to represent him and his company, Thomas Barr IV Louisiana Properties General, LLC, relative to several legal disputes arising out of his business dealings in Louisiana. Barr had been a client of the Scofield Firm since 2006. Barr, himself an attorney licensed to practice law in Louisiana, is a resident of the State of New York. Phillip DeVilbiss, a partner in the Scofield Firm, was the attorney primarily responsible for Barr’s files. In February 2009, Barr and DeVilbiss had a dispute over whether certain correspondence should be sent out under Barr’s own signature. Unable to resolve the conflict, Barr signed written consents to DeVilbiss’s withdrawal from five separate matters, and Ban' was enrolled as the sole counsel of record. While the parties dispute the circumstances surrounding the withdrawal, with the Scofield Firm asserting that it was at the instruction of Barr and with Barr asserting that it was unexpected, it is undisputed that Barr signed multiple consents to withdraw.

At the time the Scofield Firm’s representation of Barr was discontinued, there was an alleged balance of $16,665.57 in outstanding legal fees. On June 9, 2009, the Scofield firm sent a demand letter to Barr for payment of the fees. No payment was made. The Scofield Firm then filed suit against Barr in July 2009. In response, Barr filed an exception of lack of personal jurisdiction which was denied by the trial court. Barr then filed an answer in which he alleged, as affirmative defenses, that the amount allegedly owed was erroneous since “Plaintiff failed to adequately render the | ¡.services for which [it] had been retained” and that the Scofield Firm was not entitled to an award of attorney’s fees because the underlying claim on open account was invalid. The Scofield Firm then filed a motion for summary judgment supported by the following evidence: (1) the affidavit of Phillip DeVilbiss identifying the invoices and confirming the amount of unpaid legal fees and the amount of legal fees incurred by the Sco-field Firm in the prosecution of this matter, (2) copies of all unpaid invoices, (3) copies of engagement letters signed by Devilbiss and Barr, (4) copies of written consents to withdraw signed by Barr, and [1129]*1129(5) a copy of the demand letter sent to Barr. In opposition, Barr filed his own affidavit alleging that the withdrawal by the Scofield Firm was unexpected, without adequate warning, and arbitrary and capricious. The trial court granted the motion for summary judgment in favor of the Scofield Firm in the full amount of $16,665.57 and awarded attorney’s fees in the amount of $15,000.00, plus judicial interest from the date of judgment and all costs of the proceedings. Barr now appeals, alleging that summary judgment is improper because the Scofield Firm “failed to meet its initial evidentiary burden of establishing the accuracy of the underlying account in its open account claim,” that his affidavit established the existence of genuine issues of material fact, and that the award of attorney’s fees was improper. The Scofield Firm has answered the appeal alleging that the appeal is frivolous and seeking additional attorney’s fees incurred in the defense of this appeal as well as damages for frivolous appeal. For the following reasons, we affirm the trial court’s grant of summary judgment and the award of attorney’s fees in favor of the Scofield Firm. However, we decline to find that this appeal is frivolous and do not make any award for damages or award any additional sums for attorney’s fees incurred in defense of this appeal.

DISCUSSION

It is well settled that we review the trial court’s grant of a motion for summary judgment de novo under the same criteria that governed the trial court’s consideration of whether summary judgment is appropriate. Chrysler Fin. Co., L.L.C. v. Gene Ducote Auto., LLC, 04-1223 (La.App. 5 Cir. 3/1/05), 900 So.2d 119. Moreover, La.Code Civ.P. art. 966 provides that a motion for summary judgment is properly granted only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law.”

In Metal Coatings, LLC v. Petroquip Energy Services, LP, 06-1108, p. 4 (La.App. 3 Cir. 11/21/07), 970 So.2d 695, 698, we stated:

In order to prevail in a suit on an open account, the creditor must first prove the account by showing that the record of the account was kept in the course of business and by introducing evidence regarding its accuracy. Once a prima facie case has been established by the creditor, the burden shifts to the debtor to prove the inaccuracy of the account or to prove the debtor is entitled to certain credits. Jacobs Chiropractic Clinic v. Holloway, 589 So.2d 31 (La.App. 1 Cir.1991).

Louisiana Code of Civil Procedure Article 966 provides that the moving party on a summary judgment bears the burden of proving that there are no genuine issues of material fact. Once that pri-ma facie showing is made, the burden then shifts to the nonmoving party to rebut it. Townley v. City of Iowa, 97-493 (La.App. 3 Cir. 10/29/97), 702 So.2d 323. In support of its motion for summary judgment, the Scofield Firm submitted: (1) the affidavit of Phillip DeVilbiss identifying the invoices and confirming the amount of unpaid legal fees and the amount of legal fees incurred by the Scofield Firm in the prosecution of this matter, (2) copies of all unpaid invoices, (3) copies of engagement letters signed by DeVilbiss and Barr, (4) copies of written consents to withdraw signed by Barr, and (5) a copy of the demand letter sent to Barr. Barr submitted only his own self-serving affidavit. We have reviewed the record and are satisfied that Barr has raised no genuine issue of material fact [1130]*1130regarding the amount owed. Nor has Barr filed any reconventional demand or asserted any affirmative defenses that raises any genuine issues of material fact that would defeat summary judgment. Therefore, we reach the same conclusion as the court below, that there are no genuine issues of material fact and that the Scofield Firm is entitled to judgment as a matter of law.

An award of reasonable attorney fees to the successful plaintiff in a suit on an open account is authorized by La.R.S. 9:2781. It is clear that the amount of attorney’s 14fees awarded is left to the sound discretion of the trial court. On appeal, we should not disturb the amount of attorney’s fees awarded absent a showing of abuse of discretion. Metro. Reporters, Inc. v. Avery, 95-504 (La.App. 5 Cir. 11/28/95), 665 So.2d 547. Several factors, including the ultimate result obtained, the nature of the case, the amount of time and skill involved and the ability of the party liable to pay, are to be considered in determining the reasonableness of the amount of attorney’s fees awarded. Id.

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58 So. 3d 1127, 10 La.App. 3 Cir. 1347, 2011 La. App. LEXIS 290, 2011 WL 799716, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scofield-gerard-singletary-pohorelsky-llc-v-barr-lactapp-2011.