THE KULLMAN FIRM, A * NO. 2024-CA-0138 PROFESSIONAL LAW CORPORATION * COURT OF APPEAL VERSUS * FOURTH CIRCUIT INTEGRATED ELECTRONIC * TECHNOLOGIES, INC. STATE OF LOUISIANA *******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2019-03556, DIVISION “F-14” Honorable Jennifer M. Medley, ****** Judge Rachael D. Johnson ****** (Court composed of Judge Rosemary Ledet, Judge Tiffany Gautier Chase, Judge Rachael D. Johnson)
Guy Earl Wall Jonathan R. Cook Sara M. Lewis WALL COOK & LEWIS, L.L.C. 540 Elmwood Park Boulevard Harahan, LA 70123
COUNSEL FOR PLAINTIFF/APPELLEE
Jesse B. Hearin, III ATTORNEY AT LAW 155 Robert Street, Suite 238 Slidell, LA 70458
Jack Edward Morris JACK E. MORRIS, ATTORNEY AT LAW, LLC 4051 Veterans Memorial Boulevard Suite 208 Metairie, LA 70002
COUNSEL FOR DEFENDANT/APPELLANT
EXCEPTION OF PRESCRIPTION OVERRULED; AFFIRMED September 27, 2024 RDJ RML TGC Appellant, Integrated Electronic Technologies, Inc. (“IET”), seeks review of
the July 6, 2023 district court judgment, rendered in conformity with a jury verdict,
ordering IET to pay the Appellee, the Kullman Firm, APLC (“Kullman”),
$251,239.59, plus interest thereon, reasonable attorneys’ fees and costs. IET
additionally seeks review of the district court’s rulings denying IET’s motion for
mistrial and its motion for new trial. Lastly, IET raises an exception of
prescription on appeal. Upon review of the applicable facts and law, we affirm the
district court’s judgment and rulings. IET’s exception of prescription is overruled.
Facts and Procedural History
This appeal involves a dispute between IET, a satellite cable television
installation company, and Kullman over unpaid attorneys’ fees IET owed to
Kullman for its defense of IET in federal court. In 2011, Don Gantt, IET’s founder
and owner, retained Kullman to defend IET in a lawsuit by satellite installation
technicians filed in the United States District Court for the Eastern District of
Louisiana (“Eastern District”). It is undisputed that prior to the drafting of
Kullman’s engagement letter, Mr. Gantt met with Ernest Malone— a Kullman
1 shareholder and the Vice-President of the Kullman firm—to discuss the Eastern
District lawsuit, anticipated similar lawsuits against IET, and Kullman’s potential
representation of IET. Kullman’s engagement letter contained a provision that
IET’s individual invoices would become past-due after 60 days. It is also
undisputed that Kullman associate, Ben Banta, advised Mr. Gantt that the amounts
of Kullman’s invoices would vary, and sometimes spike. The Kullman firm
advised Mr. Gantt that defense of collective action lawsuits is labor-intensive and
costly.
Subsequently, a second lawsuit was filed against IET by technicians in the
United States District Court for the Southern District of Alabama, which was later
transferred to the Eastern District (these two lawsuits are collectively referred to as
“the Lawsuits” herein). In the Lawsuits, some of IET’s satellite installation
technicians filed collective actions under the Fair Labor Standards Act (“FLSA”)
against IET and Dish— for which IET was a contractor— alleging both companies
violated the FLSA and owed wages, benefits, and other damages to the technicians
as a result of incorrectly classifying them as independent contractors rather than as
employees.
Kullman represented IET from 2011 to August 16, 2016, when a settlement
was approved by the Eastern District. IET, however, became delinquent in paying
its attorneys’ fees to Kullman numerous times throughout the course of the
representation. Moreover, prior to and following the settlement, IET began
questioning Kullman’s billing practices and the validity of its invoices. Kullman’s
invoices remained unpaid following the issuance of its final invoice to IET.
Kullman initially retained counsel to collect IET’s past due payments, but to
no avail. It later filed against IET on April 2, 2019. Kullman pleads that IET
2 retained its firm in 2011, agreeing to pay hourly billing rates on an open account.
It pleads that from October 2011 through February 18, 2015, IET paid Kullman’s
monthly invoices— ranging anywhere from $149.20 to $41,133.23— in full.
However, Kullman alleges that a second February 18, 2015 invoice issued to IET
for $30,840 was only partially paid, leaving a balance of $26,282.69. Kullman
states that IET failed to pay any further invoices, the last of which was issued on
November 9, 2016.
Following a four-day jury trial, a jury found in favor of Kullman; and the
district court rendered a July 6, 2023 judgment in conformity with the jury verdict.
The judgment ordered IET to pay $251,239.59, with interest on any accounts that
are 60 days past due, Kullman’s attorneys’ fees, and costs. The district court later
denied IET’s motion for new trial on December 7, 2023, and ordered IET to pay
$159,558.97 in reasonable attorneys’ fees and $34,103.26 in costs. This timely
appeal followed. After this appeal was lodged, IET filed an exception of
prescription in this Court.
Assignments of Error
IET raises four assignments of error, alleging the district court erred in: 1)
awarding attorneys’ fees and costs in favor of Kullman and against IET; 2) denying
IET’s motion for a mistrial due to prejudicial misconduct during voir dire; 3)
granting Kullman’s motion in limine to exclude evidence of the unreasonableness
of attorney fee invoices; and, 4) denying IET’s motion for new trial.
In addition to IET’s assignments of error, as noted above, IET filed an
exception of prescription in this Court. We first address IET’s exception of
prescription.
3 Exception of Prescription
On appeal, IET excepts to Kullman’s petition on the grounds of prescription,
pursuant to La. Code of Civ. Proc. art. 2163.1 IET avers that Kullman’s claims for
payments due on an open account prior to April 2, 2016, prescribed because there
is a three-year prescriptive period for open account claims under La. Code of Civ.
Proc. arts. 3494(1) and 3495, which state in pertinent part:
La. Civ. Code art. 3494
The following actions are subject to a liberative prescription of three years:
(4) An action on an open account
La. Civ. Code art. 3495
This prescription commences to run from the day payment is exigible. It accrues as to past due payments even if there is a continuation of labor, supplies, or other services.
IET argues that Kullman’s claims for payment based on unpaid invoices
issued between February 18, 2015, and April 2, 2016, became exigible after
nonpayment and, therefore, prescribed within three-years of the respective invoice
dates. There were 13 invoices issued during this time period, including the
1 La. Code of Civ. Proc. art. 2163 provides:
A. The appellate court may consider a peremptory exception filed for the first time in that court if the exception is pleaded prior to a submission of the case for a decision and if proof of the ground of the exception appears of record.
B. If the ground for the peremptory exception pleaded in the appellate court is prescription or peremption, the plaintiff may demand that the case be remanded to the trial court for trial of the exception.
4 aforementioned partially paid February 18, 2015 invoice. IET contends that
“[p]rescription of the balance due on an open account begins to run from the date
of the last credit entry on account.” Bell Fence & Galvanizing Co./Cent. Fence v.
Bond, 41,820, p. 4 (La. App. 2 Cir. 1/24/07), 948 So.2d 353, 355 (citing Ritchie
Grocer Co. v. Dean, 182 La. 518, 162 So. 62 (1935); Frierson Co., Inc. v. Murray,
190 So. 132 (La. App. 2d Cir.1939)). Pursuant to Kullman’s engagement letter,
Kullman reserved the right to charge interest “on any accounts that are 60 days
past due”; and the district court awarded Kullman contractual damages under this
provision. Therefore, according to IET, Kullman’s claims for payment became
exigible within 60 days of the issuance of each invoice. IET contends because it
last made a payment towards Kullman’s second-issued February 18, 2015 bill, the
majority of Kullman’s claims for payment of its invoices prescribed.
Kullman responds that prescription on a client’s legal invoices cannot run
while a lawyer’s representation of the client is ongoing. It contends that IET’s
argument contradicts “Louisiana jurisprudence holding that prescription does not
begin to run on an attorney’s invoice to his client until the representation in the
underlying litigation has ended.” Haas v. Estate of Ledoux, 427 So.2d 12, 13-14
(La. App. 3d Cir. 1983); Garden Hill Land Corp, v. Cambre, 354 So.2d 1064,
1068 (La. App. 4th Cir. 1978); Hargrove, Guyton, Van Hook and Ramey v.
Blanchard, 216 So.2d 127, 130-31 (La. App. 2d Cir. 1969); Mouton, Champagne
& Colomb v. Bourgeois, 208 So.2d 546, 549-50 (La. App. 3d Cir. 1968); Lyons v.
Hall, 90 So.2d 519, 522 (La. App. 2d Cir. 1956). Kullman further contends that if
IET is correct, this would have a “chilling and potentially detrimental effect on
clients.”
5 IET counters that Kullman’s reliance upon outdated cases to support its
argument that it could not sue IET while still representing IET is misplaced. It
notes that Kullman’s cited cases were decided before the revision of articles 3494
and 3495 on January 1, 1984. IET maintains that under the current La. Civ. Code
art. 3495, prescription commences to run as to past due payments “even if there is
a continuation of labor, supplies, or other services,” as in the instant matter. Also,
it argues that Kullman had the right to move to withdraw as counsel in the federal
litigation, but it did not. We disagree.
A peremptory exception generally raises a purely legal question. Metairie III
v. Poche' Const., Inc., 10-0353, p. 3 (La. App. 4 Cir. 9/29/10), 49 So.3d 446, 449.
An exception of prescription is designed to stop the prosecution of stale claims.
Prevo v. State ex rel. Dep't of Pub. Safety & Corr. Div. of Prob. & Parole, 15-
0823, p. 4 (La. 11/20/15), 187 So.3d 395, 398 (citation omitted). The exceptor
bears the burden of proof, unless it is evident on the face of the proceedings that
the claim has prescribed, at which point the burden shifts to the plaintiff to show
that the matter has not prescribed. Id.
“Statutes regulating prescription are strictly construed against prescription
and in favor of the obligation sought to be extinguished.” Wells Fargo Fin.
Louisiana, Inc. v. Galloway, 17-0413, p. 9-10 (La. App. 4 Cir. 11/15/17), 231
So.3d 793, 801 (citation omitted). “The applicable prescriptive period is
determined by the character of the action pled in the petition. Id., 17-0413, p. 10,
231 So.3d at 801. As stated above, the applicable prescriptive period is three years
from the date the claim became exigible.
“Exigible” under La. Code Civ. Proc. art. 3494 has been interpreted to mean
“requireable” and “demandable.” See Orsot v. Acadian Ambulance Serv., Inc., 19-
6 863, p. 8 (La. App. 3 Cir. 7/15/20), 304 So.3d 487, 493, and Ledoux v. City of
Baton Rouge/Par. of E. Baton Rouge, 99-2061, p. 5 (La. 2/29/00), 755 So.2d 877,
879-80. The prescriptive period on an open account runs from the date of the last
purchase or payment. Touro Infirmary v. Am. Mar. Officer, 09-0696, 09-0314, p.
13 (La. App. 4 Cir. 1/7/10), 34 So.3d 878, 886 (citation omitted). “However, when
the open account arrangement between the parties involves the rendition of
professional services, as in this case, other considerations may influence the date a
debt becomes exigible.” Blanchard v. Cors & Bassett, 12-0939 (La. App. 1 Cir.
4/11/13), 2013 WL 1491270, at *1 (unpublished) (citing Evans-Graves Engineers,
Inc. v. Cunard, 95-1035 (La. App. 1 Cir.12/15/95), 665 So.2d 794, 796; Mid-South
Analytical Labs, Inc. v. Jones, Odom, Spruill & Davis, LLP, 40,089 (La. App. 2
Cir.9/23/05), 912 So.2d 101, 106-08).
This Court has held that the three-year period for seeking recovery of
attorneys’ fees, pursuant to article 3494, commences from the date that services
were rendered. Breeden v. Cella, 02-0972, p. 13 (La.App. 4 Cir. 11/26/02), 832
So.2d 1072, 1080 (citations omitted). This Court further noted that Louisiana
jurisprudence considers additional factors in determining when prescription
commences to run: (i) the purpose of the attorney’s employment, when and if that
purpose was accomplished, and when and if the services were completed; (ii)
whether the services were performed on a contingency fee basis; and (iii) when the
employment was terminated. Id., 02-0972, pp. 13-4, 832 So.2d at 1080 (citing
Succession of Buvens, 373 So.2d 750, 752 (La.App. 3 Cir.1979)). “The latter
factor, however, is ‘[p]erhaps the most important factor.’” Id., 02-0972, pp. 13-4,
832 So.2d at 1080.
7 In applying the Breeden factors to the instant matter, we note that Kullman
rendered services for IET from 2011 through August 16, 2016. The purpose of
Kullman’s employment was to defend IET in the Lawsuits, which it accomplished
by settling the Lawsuits resulting in the termination of the litigation in August
2016. The services were not performed on a contingency fee basis; instead, the
parties agreed that Kullman would bill IET monthly at various applicable hourly
rates for the work Kullman’s respective associates and Mr. Malone performed.
Lastly, Kullman’s employment was terminated on August 2016, when the Eastern
District approved the settlement. We find that the application of the Breeden
factors militates towards finding that prescription did not commence to run until
August 2016.
Attorneys are fiduciaries to their clients and their conduct in Louisiana is
bound by the Louisiana Professional Rules of Conduct. The client-attorney
relationship is a unique professional relationship and is distinguishable from those
cited in the cases relied upon by IET, which do not involve attorney-client open
accounts. Under the unique facts presented, we find that Kullman’s claims became
exigible on August 16, 2016, when the Eastern District approved the settlement of
the Lawsuits and Kullman ceased representing IET.2 The instant lawsuit was filed
on April 2, 2019, within three years of August 16, 2016. Therefore, IET’s
exception of prescription is overruled. We now turn to discuss IET’s four
assignments of error.
Error in Awarding Attorneys’ Fees and Costs
2 Furthermore, comment (a) of the 1983 revision comments of La. Civ. Code art. 3495
states that current art. 3495 does not change the law. Thus, if there is no change in the substance of the law, the pre-1983 cases cited by Kullman are still applicable when determining when attorneys’ fees become demandable.
8 IET contends that had it prevailed on its exception of prescription, a
reduction of the district court’s July 6, 2023 Judgment, awarding attorneys’ fees
and costs, as well as the December 7, 2023 Judgment, assessing those costs, would
be required as those awards would be erroneous and necessitate reversal. IET
avers that no contract authorizes the award of attorneys’ fees in favor of Kullman.
Kullman is not entitled to recovery of attorneys’ fees under the open account
statute, La. Rev. Stat. 9:2781(A), because it failed to correctly set forth the amount
owed in its demands to IET by including the prescribed claims. However, as
discussed above, having denied IET’s exception of prescription, we pretermit this
assignment of error.
Motion in Limine
IET avers that the district court erred in granting Kullman’s pre-trial motion
in limine preventing the jury from considering evidence relating to its bills that IET
had already paid. We do not find that the district court abused its vast discretion.
The May 1, 2023 transcript reflects that Kullman moved to exclude any
evidence regarding IET’s payment of Kullman’s invoices, issued between October
26, 2011 and January 27, 2015, totaling $276,279.01. Kullman alleged the paid
invoices were irrelevant to the underlying matter. IET, however, argued that Mr.
Gantt agreed to paying $5,000 per month, or increments thereof, to Kullman
consistent with the parties’ engagement agreement, including in sums of anywhere
from $10,000 to $70,000. IET further asserts that Mr. Gantt did not sign-off on
Kullman’s invoices and did not approve all of Kullman’s invoices because the
invoices failed to detail the amount of time Kullman spent on each task. Kullman,
IET argues, applied Mr. Gantt’s payments to its invoices as it wished. IET further
9 contends that the exclusion of the subject invoices would hinder IET’s
establishment that Kullman charged IET outrageous sums.
Kullman’s response was that IET’s or Mr. Gantt’s internal accountant
applied IET’s payments for Kullman’s invoices to the oldest unpaid invoices, just
as Kullman did. It further argued that the lack of specificity in its initial invoices is
irrelevant because Kullman adjusted the format of its later issued invoices and
revised the earlier issued invoices to accommodate Mr. Gantt’s requests.
The district court granted Kullman’s motion, reasoning that there would be
juror confusion if Kullman’s paid invoices were introduced. Motions in limine are
reviewed by appellate courts using the abuse of discretion standard of review,
which gives district courts “great discretion” in their consideration of the motion.
Noel v. Noel, 15-37, p. 15 (La. App. 3 Cir. 5/27/15), 165 So.3d 401, 413.
Moreover, pursuant to La. Code Evid. art. 402, unless otherwise provided by law,
all relevant evidence is admissible. Relevant evidence is “evidence having any
tendency to make the existence of any fact that is of consequence to the
determination of the action more or less probable than it would be without the
evidence.” La. Code of Evid. art. 401. Additionally, even relevant evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, or waste of time. La. Code Evid. art. 403.
In consideration of the applicable law and the facts presented, we find that
the district court did not abuse its discretion. The introduction of paid invoices in a
10 trial for unpaid fees is irrelevant and could reasonably have led to the jury being
confused or misled. This assignment of error is without merit.3
Motion for Mistrial
IET asserts that during voir dire a juror tainted the jurors who were in her
panel—consisting of four jurors and two alternates— who heard her say she knew
Mr. Malone, who she babysat for, and vouched for his trustworthiness.
In the instant matter the district court struck the potential juror, Juror 6, for
cause, after Kullman attempted to rehabilitate her. During voir dire of the second
panel of jurors, Juror 6 stated she knows Kullman’s corporate representative, Mr.
Malone. She used to babysit his children, is friends with his daughter and is his
neighbor. When questioned by Kullman’s counsel as to whether her relationship
with Mr. Malone would impact her ability to be a fair juror, she responded, “I
would tend to think he is an honorable, trustworthy and honest man, because I
know him.” She went on to state that her father was friends with one of Kullman’s
founders. She stated, in response to questioning by Kullman’s counsel, that she
found Mr. Malone trustworthy, and further that she considered that Mr. Malone
kept promises to her as evidenced by his paying her each time she babysat. The
district court struck the prospective juror for cause.
The record reflects that IET did not object at any point during the voir dire;
rather it waited until the next day, after the jury was empaneled, to move for a
3 We note that IET did not proffer the excluded invoices until the hearing was held on its
motion for new trial.
11 mistrial. Counsel for IET asserted that IET was unable to get a fair trial as a result
of the stricken juror vouching for Mr. Malone. Counsel asserted that Kullman’s
follow-up questions for Juror 6, led her to make prejudicial statements about Mr.
Malone’s trustworthiness. Counsel for IET asserted that Juror 6 told her fellow
potential jurors that Mr. Malone was a great guy who they should trust. In denying
the motion, the district court noted that Juror 6 was stricken and it did not find that
the jury was tainted. Kullman further asserts that the district court gave a curative
instruction to the jury that information given during voir dire, including comments
from other potential jurors, was not evidence and could not be considered.
A mistrial is a drastic remedy that should solely be granted when an “error
results in substantial prejudice sufficient to deprive a party of any reasonable
expectation of a fair trial.” Gotch v. Scooby’s ASAP Towing, LLC, 19-0030, p. 5
(La. 6/26/19), 285 So.3d 459, 463. Pursuant to La. Code Civ. Proc. art. 1631,
district courts on their own motion, or on the motion of any party, following a
hearing, have vast discretion in determining whether to grant a mistrial, since
mistrials are not a matter of right. Therefore, appellate courts may not disturb a
district court’s denial of a motion for mistrial absent a showing of an abuse of that
discretion. Gotch, 19-0030, p. 5, 285 So.3d at 463.
This Court has specified that in civil cases, motions for mistrial should be
granted when, before the trial ends and the judgment is rendered, the trial judge
determines that it is impossible to reach a proper judgment because of some error
or irregularity. Searle v. Travelers Ins. Co., 557 So.2d 321, 323 (La. App. 4th Cir.
1990). So too should a mistrial be granted “when no other remedy would provide
relief to the moving party, including ‘proof of prejudicial misconduct occurring
during a jury trial which cannot be cured by admonition or instructions to the
12 jury.’” Chalmette Retail Ctr., L.L.C. v. Lafayette Ins. Co., 09-0217, p. 34-5 (La.
App. 4 Cir. 10/16/09), 21 So.3d 485, 507 (quoting Boutte v. Kelly, 02-2451, p. 26
(La. App. 4 Cir. 9/17/03), 863 So.2d 530, 549). “In the analogous area of mistrials
in criminal law, we have emphasized that a party seeking a mistrial must make a
‘clear showing of prejudice’ and have consistently held ‘a mere possibility of
prejudice is not sufficient.’ ” Gotch, 19-0030, p. 5, 285 So.3d at 463 (quoting State
v. Ducre, 01-2778 (La. 9/13/02), 827 So.2d 1120, 1120).
There is no evidence that the comments from one prospective juror about
Mr. Malone’s trustworthiness in paying for her babysitting services impacted the
jury pool. Moreover, the record reflects the stricken juror never stated to the
potential jurors that they should trust Mr. Malone. Here there has been no clear
showing of prejudice. There was no error or irregularity that prevented a proper
judgment from being reached. Moreover, any prejudicial statements made were
sufficiently cured by the district court’s removal of Juror 6 and its issuance of a
curative instruction.4 This assignment of error is without merit.
Motion for New Trial
In its final assignment of error, IET asserts that the district court erred in
denying IET’s motion for a new trial on peremptory and discretionary grounds,
pursuant to La. Code Civ. Proc. arts. 1972 (1) and 1973, respectively. IET
contends that the jury’s verdict is clearly contrary to the law and evidence because
Kullman’s charges for attorneys’ fees and expenses were unreasonable, it
committed misconduct during voir dire and relevant evidence was excluded. IET
4 We note that IET did not make contemporaneous objection when Juror 6 made
statements about Mr. Malone.
13 avers that the cumulative effect of these errors prejudiced the jury and IET at trial,
resulting in a miscarriage of justice.
IET avers that the jury’s verdict is clearly contrary to the law and evidence
and entitles IET to a new trial on peremptory grounds under Article 1972(1)
because the jury’s finding that IET owed Kullman the full amount claimed is
contrary to applicable law requiring that attorneys’ fees must be reasonable and
necessary. The evidence presented at trial established that several of Kullman’s
charges for attorneys’ fees and expenses were unreasonable, unnecessary, and
unauthorized. IET asserts that Kullman’s invoices— dated between October 26,
2011, to July 30, 2012— failed to state the time its lawyers and staff spent on legal
services; consequently, it breached its duty to keep IET “reasonably informed
about the status of the matter,” under La. R. Prof. Cond. 1.4(a)(3). IET argues that
this omission reflects that Kullman failed to carry its burden of proof at trial to
prove that the attorneys’ fees it charged in each of those invoices “were reasonable
and not excessive ....” Dutel v. Succession of Touzet, 94-0978, p. 7 (La. App. 4 Cir.
1/19/95), 649 So.2d 1084, 1087. It further argues the jury was unable to determine
the reasonableness of the fees due to this omission.
IET asserts Ben Miller, a Kullman associate, admitted in this testimony that
the invoices issued during 2015 alone included hourly charges of at least $15,000
for travel time between his Baton Rouge home and Kullman’s office or other
locations in New Orleans, in addition to charges of at least $4,000 in mileage and
other expenses for those trips. IET contends that Mr. Miller’s behavior was
unacceptable because he was charging for driving from his home to Kullman’s
office. Kullman’s own legal expert, labor attorney Thomas McGoey, testified that
14 he understood Mr. Gantt having an issue with being charged for the commute from
Baton Rouge to New Orleans for a deposition.
Additionally, IET asserts the district court erred in failing to grant IET a new
trial on discretionary grounds under La. Code. Civ. Proc. art. 1973 because the
district court’s award of the full amount of Kullman’s claim is clearly contrary to
the law and evidence due to the unreasonableness of Kullman’s charges for
attorneys’ fees and expenses. IET avers that upholding the district court’s
judgment would result in a miscarriage of justice, and this, combined with other
prejudicial circumstances surrounding the trial constitute good grounds for
granting a new trial. IET asserts those prejudicial circumstances include Kullman’s
counsel’s prejudicial misconduct during voir dire discussed in support of its second
assignment of error and the district court’s prejudicial exclusion of evidence of the
unreasonableness of Kullman’s paid attorney fee invoices as discussed in support
of its third assignment of error. We disagree.
A new trial shall be granted, upon contradictory motion of any party, “when
the verdict or judgment appears clearly contrary to the law and the evidence.” La.
Code Civ. Proc. art. 1972(1). Moreover, a new trial may be granted on
discretionary grounds, “in any case if there is good ground therefor, except as
otherwise provided by law.” La. Code Civ. Proc. art. 1973. Rulings on a motion
for new trial are reviewed under an abuse of discretion standard of review. Sunset
Harbour, LLC v. Brown, 22-0572, p. 9 (La. App. 4 Cir. 1/9/23), 356 So.3d 1167,
1173 (citation omitted).
First, we pretermit discussion of those arguments IET re-urges from its
second and third assignments of error as those arguments have been found
meritless. Additionally, we note that with regard to the reasonableness of
15 Kullmans’ attorneys’ fees and expenses, the jury heard conflicting testimony from
the parties’ witnesses.
Mr. Gantt, for instance, testified that he is IET’s founder and he retained
Kullman to represent IET. He testified that although it was explained to him that
Kullman’s billing would fluctuate and that collective action lawsuits, such as his,
were complicated and labor intensive, he ultimately found Kullman’s billing
deceptive and that he was unfairly being charged or travel expenses. He recounted
Kullman’s monthly invoices increasing to amounts of $30,000 or more, yet he
believed he was only obligated to pay $5,000 monthly. He admitted to being in a
“perpetual state of arrearment.” He further testified that he disputed travel charges
for Kullman’s attorneys traveling between New Orleans to Birmingham and from
New Orleans to Baton Rouge. He stated that he became dissatisfied with Kullman
when he concluded that it was intentionally running up IET’s bill.
However, Mr. Malone and Mr. McGoey, testified as to the reasonableness of
Kullman’s billing. Mr. McGoey’s opinion was based upon his review of the
records of the Lawsuits, including depositions, pleadings, motions, answers, prior
to and after consolidation, and related materials.
Mr. Malone noted that he was aware of IET’s financial constraints, which is
why he limited his billing on IET’s behalf to approximately 30 hours, knowing that
his billable rate was much higher than the associates he assigned to perform the
majority of IET’s defense. He testified that Mr. Gantt had been warned by him that
Kullman’s defense of IET would be expensive due to the labor-intensive nature of
the work.
Mr. McGoey was accepted by the district court as an expert in the fields of
labor and employment law as well as reasonableness and appropriateness of
16 attorneys’ fees in such cases. He opined that based on his review of the applicable
factors enumerated in Rule 1.5 of the Louisiana Rules of Professional Conduct, he
determined Kullman’s hourly billing rates to be reasonable and appropriate. He
further testified that IET was being undercharged by Kullman considering what
other local firms customarily charge for similar legal services. He further noted the
travel expenses charged were typical and were a fraction of the bill, totaling $7,000
between February 2015 and the end of the case.
Here, where the jury was presented with conflicting testimony, it determined
that Kullman’s witnesses were more credible. The records reflects that the jury had
a reasonable basis to conclude that Kullman was entitled to collect payment on all
of its past-due invoices. Moreover, at trial Kullman’s invoices issued prior to
January 2015 and their formatting, were not at issue because they had been paid,
and testimony was adduced to trial to demonstrate that Kullman re-formatted its
invoices in response to Mr. Gantt’s initial complaints. Thus, the district court did
not abuse its discretion in concluding that IET was not entitled to a new trial on
peremptory or discretionary grounds.
DECREE
For the foregoing reasons, IET’s exception of prescription is denied. The
July 6, 2023 district court judgment and its rulings denying IET’s motion for
mistrial and motion for new trial, are affirmed.
EXCEPTION OF PRESCRIPTION OVERRULED; AFFIRMED