YAVONKA G. ARCHAGA NO. 19-CA-85
VERSUS FIFTH CIRCUIT
TONYA JOHNSON, GARRON JOHNSON AND COURT OF APPEAL JOHNSON AND JOHNSON LAW OFFICES, LLC STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 769-152, DIVISION "M" HONORABLE HENRY G. SULLIVAN, JR., JUDGE PRESIDING
October 16, 2019
FREDERICKA HOMBERG WICKER JUDGE
Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and Stephen J. Windhorst
AFFIRMED FHW RAC SJW COUNSEL FOR PLAINTIFF/APPELLEE, YAVONKA G. ARCHAGA Arita M. L. Bohannan
COUNSEL FOR DEFENDANT/APPELLANT, TONYA JOHNSON, GARRON JOHNSON AND JOHNSON AND JOHNSON LAW OFFICES, LLC Tonya S. Johnson WICKER, J.
In this breach of contract action, defendants, Tonya Johnson, Garron
Johnson, and Johnson & Johnson Law Offices, LLC, appeal the trial court’s
judgment rendered against them in favor of plaintiff, Yavonka Archaga. For the
following reasons, we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Yavonka Archaga, a certified public accountant, and the Johnsons,
practicing attorneys, have been friends for over thirty years. In April 2015, after
having lunch together, Mrs. Johnson expressed to Ms. Archaga, not for the first
time, that she and her husband, Garron Johnson, were in need of assistance in the
handling of their taxes. In response, Ms. Archaga offered to look at the Johnsons’
documentation in order to see if she could be of assistance. Initially, Mrs. Johnson
delivered two suitcases and a box to Ms. Archaga filled with IRS letters, certified
letters, as well as bank statements and check registers. Ms. Archaga was required
to go through and organize all of the documents so that she could determine
exactly what financial services the Johnsons needed. After her initial review of the
information provided, it became apparent to Ms. Archaga that, while Mrs. Johnson
had filed taxes as “married filing separately” for some of the years, Mr. Johnson
had not filed tax returns since 2007.
Thereafter, Ms. Archaga and Mrs. Johnson verbally agreed that Ms. Archaga
would prepare the federal and state business and personal tax returns for Tonya
Johnson, Garron Johnson, the Law Office of Garron Johnson, and Johnson &
Johnson Law Offices, LLC for the tax years, 2007, 2008, 2009, 2010, 2011, 2012,
2013, 2014 and 2015. However, Ms. Archaga and Mrs. Johnson did not execute a
written contract in advance of the performance, or otherwise, specifically agreeing
to the method or terms of payment for Ms. Archaga’s tax and accounting services.
During the ensuing nineteen months, several phone calls between Ms. Archaga, the
19-CA-85 1 Johnsons and the Internal Revenue Service (“IRS”) took place, as well as
numerous meetings between Ms. Archaga and Mrs. Johnson, all for the purpose of
collecting the requisite documentation so that Ms. Archaga could compile the data
and draft the Johnsons’ required federal and state returns. Ms. Archaga testified
that she documented over 403 hours spent preparing the Johnsons’ tax returns and
other required documentation. The Johnsons—particularly, Mrs. Johnson—were
involved throughout the entire process during which Ms. Archaga was providing
financial services to, and on behalf of, the Johnsons.
In September 2016, when the Johnsons’ 2007 – 2015 tax returns were
completed, Ms. Archaga avers that Mrs. Johnson orally agreed that payment was
due to Ms. Archaga for her work. According to Ms. Archaga, this oral agreement
was corroborated by a September 9, 2016 email exchange that took place between
the parties:
Yavonka Archaga: Hey Tee, [w]e need to discuss the work done on your taxes. You know as professionals, we need to be compensated for our services. You are aware of the multiple hours I have worked on your taxes so I will not charge you the full price. But anyone would agree that compensation is due.
Tonya Short Johnson: I would agree.
Ms. Archaga testified that on September 27, 2016, following a charitable
organization board meeting1 she and Mrs. Johnson attended, the parties verbally
discussed payment for the services that she had provided to the Johnsons. Ms.
Archaga advised Mrs. Johnson that she was charging the Johnsons a flat fee of
$25,000 for over 400 hours of work in preparing their tax returns and related
1 At the time of trial, Ms. Archaga was the executive director of the New Orleans Resources for Independent Living, a private non-profit organization. Mrs. Johnson began serving in a volunteer capacity on the board of directors of the nonprofit in April 2015.
19-CA-85 2 documents, which she discounted by 65% from her regular rate because of their
longstanding friendship. Mrs. Johnson did not request a written invoice. Also
during that discussion, she and Mrs. Johnson agreed that Mrs. Johnson would pay
an additional $5,000 in order for Ms. Archaga to prepare the Johnsons’ 2016 tax
returns, set up an accounting system (i.e., Quick Books), and assist in processing
an installment agreement with the IRS for the Johnsons to pay their back taxes.
Ms. Archaga testified that she met with Mrs. Johnson on October 25, 2016,
at which time Mrs. Johnson advised that she was prepared to make an initial
payment to Ms. Archaga of $5,000 within the next two weeks, and to pay Ms.
Archaga $5,000 each month thereafter until Ms. Archaga was paid in full, unless
Mrs. Johnson first received settlement funds that she was anticipating. In the event
Mrs. Johnson received the expected settlement funds, she agreed to pay the balance
due Ms. Archaga from those funds. According to Ms. Archaga, Mrs. Johnson was
to make the initial $5,000 payment to Ms. Archaga’s PayPal address. Ms.
Archaga’s testimony was corroborated by a text message she received from Mrs.
Johnson the following day, October 26, 2016, requesting Ms. Archaga’s PayPal
address. Ms. Archaga testified that after she provided her PayPal address to Mrs.
Johnson, she received no payment via PayPal.
The next time Ms. Archaga communicated with Mrs. Johnson about the
payment due was in a text message she received from Mrs. Johnson on November
8, 2016:
Tonya Short Johnson: Happy Election Day! Finally. Let me know when you are free to wrap up. I have a check that was supposed to be here on Friday, but I should have it tomorrow. Is it okay to pay you 1500 tomorrow, and can we revise our agreement to 1500 a month until some things start to come together.
19-CA-85 3 Yavonka Archaga: Give me a call when you can talk to get better clarification and discuss other options. I will work with you as much as possible but would like to get this behind us as soon as we can. Talk to you soon. Ms. Archaga testified that one month later, Mrs. Johnson came to her house
on December 8, 2019. On that day, Ms. Archaga claims she worked for eight
hours on coding/classifying 198 financial transactions involving various accounts
into the Johnsons’ Quick Books system for 2016. This testimony was corroborated
by a text message exchange between the parties, which occurred on that date:
Tonya Short Johnson: I’m outside. In the driveway. (9:28 AM) Yavonka Archaga: Come to the front door. (9:28 AM) Yavonka Archaga: I worked and got us down to 30 transactions – 5341 32 transactions – 0050 28 transactions – AmEx 62 transactions – 9826 46 transactions – IOLTA Only 198 to go. WOHOO! (10:07 PM) Tonya Short Johnson: Yeehaw!!!!! (10:49 PM)
Ms. Archaga testified that on the following day, December 9, 2016, she
texted Mrs. Johnson to ask whether “the quick pay” had been sent, to which Mrs.
Johnson replied, “No, I don’t have it yet.” Ms. Archaga further testified that on
December 12, 2016, she received the following text message from Mrs. Johnson:
Tonya Short Johnson: Good morning, the plan was to meet today. Can we video conference/phone conference today. I can answer the questions but I can also try to get some demand letters out to settle some cases at the same time. Also, on the money piece I don’t have a client coming with some money until Wednesday. Lmk
19-CA-85 4 Yavonka Archaga: Let’s plan to meet Wednesday after you meet with your client. Also, how much are you going to pay me on Wednesday? Let’s execute an installment agreement until you get the Lucy Reed settlement check. You can remit the balance then since it’s taking a while to settle. I will reflect that payment on Wednesday in the installment agreement. What do you think? According to Ms. Archaga, instead of replying via text, Mrs. Johnson sent
her an email dated that same day, December 12, 2016, which contained the
following:
Billing for Accounting Services Tonya Johnson To: “y_____@gmail.com”
Good morning Vee, I just wanted to put everything in writing so that we are on the same page, and so that I am clear and there is no future confusion. When we began this process it started as helping out a friend type of deal, which is the reason that I would always answer any legal question, truly the reason I hired Lexi, why I am on the Board, why I have done anything that you needed with no thought of cost in mind. In spite of that, I had always planned to compensate you when my next big case had settled, because of the work that you have done, which I truly appreciate. I personally have not had a big case to settle up to this point, and we never discussed the bill or the charges. After your review the bill that was presented to me verbally in October of this year and confirmed in a follow up text to me on October 24, to complete taxes from the time we started this process until the filing of 2015 taxes is $25,000.00, which includes all work done from 2007-2015, and the 940 and 941 that have been completed but still need to be filed. That day was the first time I knew of the actual amount that you were requesting. If I had known and anticipated that type of
19-CA-85 5 bill, I would have made arrangements to pay monthly or been in a better position to determine what I could afford. I believe you also indicated that you are charging an additional $5000 for the 2016 work and to complete the installment agreement for the IRS. Additionally, you indicated that it would be $1000 per month for CPA services if we hired you to handle our 2017 accounting. This is my appreciation and I just want to make sure I am clear. I offered upon receiving this $25,000 bill to do an installment agreement, however, you indicated that you wanted to wait for Lucy Reed to settle. Because it has not yet formally settled you indicated on Wednesday that you wanted some payment towards the bill instead of waiting. Today you indicated a desire to enter into an installment agreement. I am okay with that, but I just wanted to document how we would proceed, because I just want to know what to expect so I can be prepared to meet these obligations. Based on that, I really would like to have a formal invoice that documents the $25,000 and the $5000, with your EIN that I should use for a 1099. Additionally, I would like to decline CPA services for 2017 until I have completed paying this bill. I do not want to make payment contingent upon any one case settling, rather I would like to do an installment agreement of $1500 per month and I can pay you on the 15th of each month beginning this month. [Emphasis added.] -Tonya Ms. Archaga testified that she replied to Mrs. Johnson’s email the following
day and attached a detailed invoice delineating the hours worked, the total number
of transactions coded, and the documents she had prepared on behalf of the
Johnsons. Specifically, Ms. Archaga documented working 403 hours: 302.75
hours for coding/classifying financial transactions at a rate of $200 per hour
($60,550), and 100.25 hours for preparation of documents at a rate of $250 per
19-CA-85 6 hour ($25,062.50), for a total amount assessed of $85,612.50, discounted by 65%,
for a total of $30,000.2
Despite repeated amicable demands, the Johnsons refused to remit payment
to Ms. Archaga, contending that there was no valid, enforceable oral agreement
between the parties that obligated the Johnsons to pay for the financial services
Ms. Archaga provided to them. According to the Johnsons, to the extent there was
ever any agreement in place between the parties, it was a “quid pro quo” verbal
agreement whereby Ms. Archaga agreed to provide accounting services to the
Johnsons at no cost, in exchange for the Johnsons providing legal assistance to Ms.
Archaga at no cost.
On February 16, 2017, Ms. Archaga filed suit against Tonya Johnson,
Garron Johnson, and Johnson & Johnson Law Offices, LLC, for breach of an oral
agreement. In her petition, Ms. Archaga alleges that, despite amicable demand, the
Johnsons failed to uphold their end of an oral agreement to pay her the discounted
amount of $30,000.00 owed for the financial services that she provided to them
and for preparation of the Johnsons’ federal and state business and personal taxes
for the years 2007 – 2015. Ms. Archaga claimed that she was, therefore, entitled to
the full value of the financial services she provided to the Johnsons totaling
$85,612.50, plus legal interest and attorney’s fees.3 In addition, Ms. Archaga
included in her petition a prayer for any “further legal and equitable relief as the
Court deems necessary and proper.”
In their answer to the petition, the Johnsons denied all of Ms. Archaga’s
factual allegations. The Johnsons affirmatively asserted that Ms. Archaga and the
Johnsons entered into a verbal agreement wherein the parties agreed to exchange
2 Ms. Archaga testified that she did not complete the Johnsons’ 2016 taxes as they refused to remit any payment. 3 In the petition, Ms. Archaga, delineated each of the IRS documents she prepared for the Johnsons and the “Garron Johnson required tax forms for employees.”
19-CA-85 7 professional services without charge. Further, the Johnsons averred that they were
not indebted to Ms. Archaga because they never agreed in writing or verbally to
pay her “any agreed hourly amount of money for accounting services.” According
to the Johnsons, Ms. Archaga “unilaterally sought to change the terms of their
‘quid pro quo’ agreement” because she was financially overextended and was
aware that the Johnsons were in the process of negotiating a settlement in a
personal injury matter.
The case came to trial on April 25, 2018. Ms. Archaga was the only witness
to testify. During her testimony, photocopies of the several text messages and
email exchanges between Ms. Archaga and Mrs. Johnson between September 2016
and December 2016 were admitted into evidence over the Johnsons’ objection. At
the close of Ms. Archaga’s case, the Johnsons moved for a directed verdict on the
basis that, pursuant to La. C.C. art. 1846, Ms. Archaga failed to present evidence of
corroborating circumstances sufficient to satisfy her burden of establishing the
existence of a valid and enforceable oral agreement for payment of a sum greater
than $500.4 Specifically, the Johnsons argued that Ms. Archaga failed to present
evidence of an oral agreement that was corroborated by someone other than
herself, and that the documents she submitted into evidence, which were not
verified or authenticated by anyone other than herself, did not constitute the
requisite “corroborating circumstances.” The trial court, acknowledging that the
burden of proof was upon Ms. Archaga, denied the Johnsons’ motion stating:
The Court believes that there’s been sufficient testimony and evidence, which has been admitted, to satisfy, to this point, that burden. The e-mails, which were authenticated by the plaintiff, are e-mails and texts that come also from defendants in this case, and, in fact, in cross-examination both defendants questioned the witness, the plaintiff, with regard to those e-mails. The
4 Though the Johnsons moved for a directed verdict at the close of Ms. Archaga’s case, since this was a case tried by the court without a jury, the proper procedural device would have been to move for an involuntary dismissal pursuant to La. C.C.P. art. 1672(B).
19-CA-85 8 testimony is uncontroverted as to the author of those emails.
After the trial court denied their motion, the Johnsons, without calling any
witnesses or introducing any evidence, rested their case. Upon the close of the
proceedings, the trial court, ruling from the bench in favor of Ms. Archaga,
provided the following oral reasons for judgment:
The Court, based upon the record in the matter and the testimony of the witnesses, it’s clear that the plaintiff, Ms. Archaga, did perform a great deal of work for the benefit of the defendants in this case. The question is whether or not there was agreement as to what form of payment, the amount of the payment and so on. I would agree with Mr. Johnson in his argument that there was no hourly rate agreed upon, and, therefore, the Court cannot award $83,000 based upon the failure of the parties to reach an agreement as to an hourly rate or that amount. There was an agreement, based upon the evidence that was presented to the Court, that the amount of $25,000 paid for the past work, plus the 2016 amount for setting up Quick Books, and so on, the additional $5,000. The Court would find in favor of the plaintiff and against the defendants in the amount of $30,000, plus interest from date of judicial demand and all costs. The Court cannot award attorney’s fees. The Court - - because there was no contract which included attorney’s fees as part of the contract, and, because the Court finds that this is not an open account, that the Court cannot award and the plaintiff would not be entitled to attorney’s fees.
Accordingly, the trial court entered judgment in favor of Ms. Archaga and
against the Johnsons and their law firm in the amount of $30,000, plus all costs and
judicial interest from the date of judicial demand until paid. The instant appeal
ensued.
On appeal, the Johnsons aver that there never existed a mutual agreement
that obligated them to submit payments for any services Ms. Archaga may have
rendered; i.e., there was never an agreement to pay. To the contrary, the Johnsons
contend that the parties had a “standing ‘quid pro quo’ agreement for services.”
19-CA-85 9 The Johnsons further maintain that they signed no professional contract for
services and that the December 2016 invoice submitted by Ms. Archaga failed to
include credits for services the Johnsons may have provided to Ms. Archaga. The
Johnsons raise three assignments of error for this Court’s review; to wit: (1) the
trial court erred in admitting into evidence the text messages and emails that were
authenticated solely by Ms. Archaga; (2) the trial court erred in applying the rules
governing oral contracts by making an award on an oral contract when Ms.
Archaga produced no corroborating evidence; and (3) the trial court, having
determined that there was no agreement regarding an hourly rate and that there was
no open account, erred in casting the Johnsons in judgment for $30,000.
Ms. Archaga argues the trial court correctly applied La. C.C. art. 1846 in
determining that an oral agreement to pay her was entered into and not satisfied by
the Johnsons. She contends that the emails and text messages were properly
authenticated and admitted into evidence, and that the email and text messages
authored by Mrs. Johnson, corroborated her testimony that the Johnsons had
acknowledged and agreed that Ms. Archaga was owed $30,000, and that the
Johnsons had attempted to work out a payment plan with her.
LAW AND ANALYSIS
The applicable standard of appellate review of the factual findings of the
trial court is the manifestly erroneous or clearly wrong standard. Troxler v.
Breaux, 12-330 (La. App. 5 Cir. 11/27/12), 105 So.3d 944, 948. Under this
standard, in order to reverse a trial court’s finding, an appellate court must conduct
a two-part inquiry: (1) the court must find from the record that a reasonable factual
basis does 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 (La. 7/6/10), 41 So.3d 1119, 1127-28; Stobart v. State,
Dep’t of Transp. and Development, 617 So.2d 880, 882 (La. 1993). Furthermore,
19-CA-85 10 when factual findings are based on the credibility of witnesses, the fact finder’s
decision to credit a witness’s testimony must be given “great deference” by the
appellate court. Rosell v. ESCO, 549 So.2d 840, 844 (La. 1989). Even though an
appellate court may feel its own evaluations and inferences are more reasonable
than the fact finder’s, reasonable inferences of fact should not be disturbed upon
review where conflict exists in the testimony. Stobart, 617 So.2d at 882. Where
there are two or more permissible views of the evidence, the fact finder’s choice
between them cannot be manifestly erroneous or clearly wrong. Stobart, 617
So.2d at 883. A determination as to the existence of a contract is a finding of fact
which may not be disturbed on appeal unless it is clearly wrong. Arias v. Albe, 04-
26 (La. App. 5 Cir. 5/26/04), 876 So.2d 179, 182.
The party that demands performance of an obligation must prove the
existence of that obligation. La. C.C. art. 1831; Knight v. Magri, 15-543 (La. App.
5 Cir. 2/24/16), 188 So.3d 311, 315, writ denied, 16-0741 (La. 6/3/16), 192 So.3d
747. Under Louisiana law, formation of a valid and enforceable contract requires
capacity, consent, a certain object, and a lawful cause. Marcantel v. Jefferson
Door Co., Inc., 01-1307 (La. App. 5 Cir. 4/10/02), 817 So.2d 236, 239. If a
contract is not reduced to writing and its price or value is greater than $500, the
contract must be proved by at least one witness and other corroborating
circumstances. La. C.C. art. 1846; Treen Constr. Co. v. Schott, 03-1232 (La. App.
5 Cir. 1/27/04), 866 So.2d 950, 954. A party may offer his own testimony in
support of a claim of an oral contract. Gulf Container Repair Servs. v. FIC Bus. &
Fin. Ctrs., Inc., 98-1144 (La. App. 5 Cir. 3/10/99), 735 So.2d 41, 43.
Corroborating circumstances must come from a source other than the plaintiff. Id.
Only general corroboration is required; it is not necessary that the plaintiff offer
independent proof of every detail. Id. The question of whether evidence presented
19-CA-85 11 is sufficient to corroborate a claim under article 1846 is a finding of fact to be
made by the trier of fact and will not be overturned unless it is clearly wrong. Id.
With these legal precepts in mind, we now turn to the facts and
circumstances of the instant case to determine whether the trial court’s judgment in
favor of Ms. Archaga was manifestly erroneous or clearly wrong.
Admissibility of Text Messages and Emails
In their first assignment of error, the Johnsons claim the trial court erred
when it allowed into evidence photocopies of the text messages and emails
exchanged between the parties. Specifically, the Johnsons aver that because only a
printout of a screenshot taken of the text messages was presented at trial, rather
than the actual cell phone on which the text messages were received, and because
the text messages and emails were authenticated solely by Ms. Archaga and not by
another party, “which amounted to hearsay testimony,” the text messages and
emails should not have been admitted into evidence. We disagree.
Authentication of evidence is required in order for evidence to be admissible
at trial. La. C.E. art. 901 states that “authentication” is a “condition precedent to
admissibility” that is “satisfied by evidence sufficient to support a finding that the
matter in question is what its proponent claims.” State v. Haydin, 17-234 (La.
App. 5 Cir. 12/20/17), 235 So.3d 1293, 1301, writ denied, 18-0114 (La. 10/29/18),
254 So.3d 701 citing State v. Lee, 01-2082 (La. App. 4 Cir. 8/21/02), 826 So.2d
616, 624, writ denied, 02-2549 (La. 9/5/03), 852 So.2d 1019. La. C.E. art. 901(B)
provides an illustrative, though not exhaustive, list of examples of authentication or
identification that conforms with the requirements of this article. Generally, the
standard applied with respect to the authentication of a document is whether there
is sufficient evidence from which a reasonable juror (or trier of fact) could find the
proposed evidence is what the proponent claims it to be. See State v. Haydin, 235
So.3d at 1301 (text messages exchanged between the defendant and his brother
19-CA-85 12 were properly authenticated by the brother, the recipient of the texts); State v.
Smith, 15-1359 (La. App. 4 Cir. 4/20/16), 192 So.3d 836, 844 (proper
authentication for social media type evidence is whether sufficient evidence
supports a finding by a reasonable fact finder that the proffered evidence is what it
purports to be); State v. Harris, 52,541 (La. App. 2 Cir. 2/27/19), 266 So.3d 953,
961 (copies of text messages authenticated by the recipient of the texts were
deemed admissible); and State v. Frank, 15-893 (La. App. 3 Cir. 5/25/16), 192
So.3d 895-96, rev’d on other grounds, 16-1160 (La. 10/18/17), 234 So.3d 27 (La.
10/18/17) citing State v. Benedict, 04-742 (La. App. 3 Cir. 11/10/04), 887 So.2d
649, 657 (screen shots of text messages were deemed admissible when
authenticated by a witness who had personal knowledge of the item depicted,
identified it).
In the case sub judice, Ms. Archaga, who had personal knowledge,
authenticated all of the emails and text messages as originals and photocopies of
what she personally digitally possessed. Ms. Archaga testified that she was the
recipient of the texts authored by Mrs. Johnson, on a cell phone that was hers,
which texts she took a screen shot of and printed. The printout clearly shows the
sender as “Tonya Short-Johnson.” After being subject to cross-examination, the
evidence was admitted. The Johnsons were present at trial representing themselves
and could have submitted controverting testimony or evidence, but did not. We
find the trial court was not manifestly erroneous or clearly wrong in its
determination that photocopies of the emails and text messages were properly
authenticated or in admitting them into evidence. See also La. C.E. art. 1003.1.
Further, La. C.E. art. 801(D)(2) specifically provides that a statement that is
offered against “a party” and is the party’s “own statement, in either his individual
or a representative capacity” does not constitute hearsay. Because the “statements”
19-CA-85 13 contained in the emails and text messages were made by the parties themselves,
they are not hearsay. This assignment of error is without merit.
The Existence of an Oral Contract under La. C.C. art. 1846
The Johnsons argue that the trial court erred in its determination that an oral
contract was proven under La. C.C. art. 1846 where the only corroborating
evidence presented came solely from the plaintiff. Under La. C.C. art. 1846, when
a writing is not required by law, a contract with a value in excess of $500, and not
reduced to writing, must be proved by at least one witness and other corroborating
circumstances. Knight, 188 So.3d at 315. It is well settled that a party in the
litigation may serve as his or her own “credible witness” in fulfilling the
requirements of Article 1846. Deubler Elec. Inc. v. Knockers of Louisiana, 95-372
(La. App. 5 Cir. 11/15/95), 665 So.2d 481, 484. However, the corroborating
circumstances required must come from a source other than the plaintiff. Regel L.
Bisso, L.L.C. v. Stortz, 11-25 (La. App. 5 Cir. 10/25/11), 77 So.3d 1033, 1035-36.
Whether there were corroborating circumstances sufficient to establish an oral
contract is a question of fact. Id. at 1036.
Our review of the record supports the trial court’s conclusion that a valid
agreement to pay existed. Specifically, Ms. Archaga testified that she orally
agreed to provide financial services to the Johnsons, and that when the accounting
and tax work were completed, Mrs. Johnson orally agreed that compensation to
Ms. Archaga for those services was due. Ms. Archaga’s testimony is corroborated
by the numerous text messages authored by Mrs. Johnson to Ms. Archaga wherein
Mrs. Johnson expressed that she agreed that compensation for Ms. Archaga’s work
was due, proposed a plan for payment, and then requested to “revise [their]
agreement” to reduce the monthly payment to $1,500 per month. These text
messages were uncontroverted. We find the trial court correctly concluded that the
text messages authored by Mrs. Johnson and sent to Ms. Archaga constituted the
19-CA-85 14 requisite “corroborating circumstances” as they were generated “by a source other
than the plaintiff.” See Regel L. Bisso, L.L.C., 77 So.3d at 1035-36.
Similarly, we find the December 12, 2016 email written by Mrs. Johnson
and then sent to Ms. Archaga, wherein Mrs. Johnson acknowledged that $25,000
was due for Ms. Archaga’s preparation of the Johnsons’ 2007 – 2015 taxes, and
that an additional $5,000 was due for Ms. Archaga’s preparation of the Johnsons’
2016 taxes, creating an installment plan for the IRS, and setting up an accounting
system for the Johnsons, also constitutes “corroborating circumstances” sufficient
to prove that there existed an oral agreement to pay. Specifically, in that email,
Mrs. Johnson declined Ms. Archaga’s offer to provide any further accounting
services until she “completed paying this bill.” In the very last sentence of the
email, Mrs. Johnson stated that “[she] would like to do an installment agreement
of $1500 per month and I can pay you on the 15th of each month beginning
this month.” We find no error in the trial court’s factual finding that the text
messages and email generated by Mrs. Johnson constituted the necessary
“corroborating circumstances” sufficient to establish an oral contract between the
parties for the Johnsons to pay Ms. Archaga. This assignment of error is without
merit.
Enforceability of a Contract Lacking a Price or Hourly Rate
We also find no merit to the Johnson’s argument that the trial court was
clearly wrong “when it cast appellants in judgment when the court determined that
there was no agreement regarding [an] hourly rate.” To the contrary, the fact that
an hourly rate for Ms. Archaga’s services was not agreed upon does not vitiate the
oral agreement. Morphy, Makofsky & Masson, Inc. v. Canal Place 2000, 538
So.2d 569, 574 (La. 1989). Because we find that a valid oral agreement to pay
existed between Ms. Archaga and the Johnsons, even in the absence of an agreed
upon amount, equity principles mandate that Ms. Archaga receive compensation
19-CA-85 15 for a reasonable value for the financial services she provided. Id. at 574-75. It is
well-settled that where an agreement exists but the price to be paid is omitted, the
court, in the context of contractual interpretation must supply the missing price.
Tallulah Const., Inc. v. Northeast Louisiana Delta Community Development Corp.,
07-1029 (La. App. 4 Cir. 4/23/08), 982 So.2d 225, 233. Moreover, in the absence
of an agreed upon hourly rate or price, the equity principles set forth in La. C.C.
art. 2055 would apply to the facts of this case. Article 2055 provides, in pertinent
part:
Equity, as intended in the preceding articles, is based on the principles that no one is allowed to take unfair advantage of another and that no one is allowed to enrich himself unjustly at the expense of another.
The Louisiana Supreme Court, when determining the reasonable value for
the plaintiff’s services in Morphy, supra, held that although “there is no specific
test which must be applied to determine the reasonable value for such services,”
the calculation “is a matter of equity depending upon the circumstances of each
case.” Morphy, 538 So.2d at 575. La. C.C. art. 1999 provides that “[w]hen
damages are unsusceptible of precise measurement, much discretion shall be left to
the court for the reasonable assessment of these damages.” La. C.C. art. 1999;
Tallulah Const., Inc., 982 So.2d at 234. In this case, the trial court, considering the
testimony and evidence presented, found that the oral agreement between the
parties was for the Johnsons to pay $25,000 for past work, plus an additional
$5,000 for the services Ms. Archaga provided in 2016, for a total amount due to
Ms. Archaga of $30,000. The record supports this amount. In particular, though
Ms. Archaga testified that the value of the financial services she provided to the
Johnsons exceeded $85,000 and presented an invoice documenting these services,
Ms. Archaga also testified that because of her longtime friendship with the
Johnsons, she had agreed to a discounted flat fee totaling $30,000. Moreover, in
19-CA-85 16 the email Mrs. Johnson sent to Ms. Archaga on December 12, 2016, Mrs. Johnson
acknowledged the $30,000 amount that was due and recommended an installment
agreement of $1,500 per month until the bill was paid.
Upon a careful review of the record, and for the reasons stated above,
because we find nothing which demonstrates that the trial court was unreasonable
in its finding that there was a valid agreement between the parties for the Johnsons
to pay Ms. Archaga, we find no manifest error on the part of the trial court or that
the trial court was clearly wrong. Further, because we find that the Johnsons
acknowledged that an amount of $30,000 was due to Ms. Archaga, and that the
employment of equity principles supports that amount based on the record, we find
no error in the trial court’s award of $30,000 to Ms. Archaga.
CONCLUSION
For the foregoing reasons, the judgment of the trial court in favor of
Yavonka Archaga and against the Johnsons and their law firm is affirmed.
AFFIRMED
19-CA-85 17 SUSAN M. CHEHARDY MARY E. LEGNON
CHIEF JUDGE INTERIM CLERK OF COURT
FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON SUSAN BUCHHOLZ STEPHEN J. WINDHORST FIRST DEPUTY CLERK HANS J. LILJEBERG JOHN J. MOLAISON, JR. FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY OCTOBER 16, 2019 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
19-CA-85 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE HENRY G. SULLIVAN, JR. (DISTRICT JUDGE) ARITA M. L. BOHANNAN (APPELLEE) TONYA S. JOHNSON (APPELLANT) LAUREN DAVEY ROGERS (APPELLEE) GARRON M. JOHNSON (APPELLANT)
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