George Bayhi VS Susan Diane Starks Ross McKey
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2007 CA 1935 GEORGE BA YHI VERSUS jJ ctJ SUSAN DIANE STARKS ROSS MCKEY I Judgment Rendered Appealed May 2 2008 from the Nineteenth Judicial District Court in and for the Parish of East Baton Rouge State of Louisiana Docket Number 545 676 Honorable Wilson Fields Jack M Judge Presiding Counsel for PlaintiffAppellant Dampf Thomas G Hessburg Baton Rouge LA George Bayhi E Counsel for DefendantAppellee Trent Baton McCarthy Rouge LA BEFORE Susan Diane Starks Ross WHIPPLE GUIDRY AND HUGHES JJ l y 71CfA CCJ 2 1 McKey WHIPPLE J Plaintiff dismissing his reasons trial George Bayhi court against defendant claims that follow Louisiana attorney a affirm in part we a appeals former client reverse court judgment his costs For the trial a at in part and remand the the matter to for further proceedings BACKGROUND Mr against Bayhi filed an a on open account in accordance with LSA RS 9 278l provided McKey to McKey According to Ms Bayhi was to Mr verbal agreement that he would be plus expenses and According to Mr bifurcated trial a against Ms Bayhi entered matter over to Mr paid for his services conduct substantial Bayhi 106 96l 25 based plus unreimbursed behalf of Ms from Ms the on to course Mr the appeal the discovery matter to a the rate proceeding of l65 00 per Mr McKey totaling as well was as case totaling he worked which the was owed Bayhi acknowledged that he the last of which 2004 2 court ruled McKey a Mr minimum legal fees totaling parties allegedly had agreed 8 8l2 l7 which he had 39 550 00 the first part representation of Ms McKey in Bayhi contended he rate to extremely both the first circuit and the favorable result for Ms of his nine year hourly expenses McKey at further asserted that after the trial ultimately obtaining Therefore to Bayhi alleged that he and Ms McKey had Bayhi alleged that because of the complexity of the of 648 25 hours divorce a Bayhi the community property partition McKey he had supreme court before this the petition Mr court costs complex and required him of to allegedly due for legal represent Ms McKey then Ross in community property partition hour recover amounts attorney client relationship with Ms McKey in June 1995 pursuant which Mr and suit Susan Diane Starks Ross services he into a allegedly incurred on had received payments was received in August On almost Mr May l5 2006 years had two Bayhi sent a letter since the successful passed Ms to McKey indicating that completion of her In the letter Mr advising her that she still owed him for his legal fees asserted that the balance due made for Ms Bayhi hired Mr via certified mail McKey 45 000 00 provided payment attorney her review the sent Ms This balance due amount actually was sought principal Mr sum finding that instant he adjustments that He further a requested that she had agreed to demand letter a reduce the thirty days On July 76 Mr 42 223 plus attorney costs of court Bayhi had failed After a s fees expenses for case to pay 9 278l the seeking interest from the date of trial the trial prove his to to 6 2006 Mr McKey still failed Bayhi filed suit in accordance with LSA RS of due suggested that the remaining 2006 When Ms 42 223 past due amount recapitulation of statements and dated June 27 to Ms stated that after 2006 75 000 00 is balance of made within a 76 send to dated June 23 Bayhi was McKey statement judicial demand and all suit attorney This letter The letter further stated that Mr s an all discounts and payments pplying Bayhi 45 000 00 at Bayhi by the end of the month Thereafter a remained McKey pay this balance after the reductions and the and case Mr court dismissed the Bayhi then filed the appeal DISCUSSION As noted above provides a cause Mr of action Bayhi filed this suit under LSA RS to recover professional services rendered account creditor Pursuant includes debts incurred for must kept in the first prove the course its accuracy account of business and Once a prima facie for debts incurred to LSA R S legal services In by showing that on 9 2781 open account for 9 278 1 D proving an which an open open account the the record of the account was by introducing supporting testimony regarding case has been established 3 by the creditor the burden shifts the debtor to the debtor is entitled fact that may not Fagan 95 08ll to prove 5 p kept his fee at 15 3 over reduced the agreement to friends 15 12 Bayhi amount the account 2006 not two set IFor example in TELECOMS WITH OF this date or statement DORSEY EXPENSES TELECOM WITH D MARTIN OF he NOTICE of contained the entry for October 1996 AFFIDAVIT question of Stiles 1320 v writ OF an on that his acknowledged not do so regular that he never because he and Ms agreed friendship and to represent her other documentation or a statement of account the merely underlying case Mr the statement did not set Bayhi testified that the was gathered from stated PREPARE LETTER TO D MARTIN AND LETTER CLIENT PREPARE TO MARTIN TELECOM WITH CLIENT ASSIGNMENT on monthly recapitulation of the of account MARTIN TELECOM D RECEIPT AND WITH CLIENT PREPARE ANSWER TO PETITION AND RECONVENTIONAL DEMAND 4 Ms seeking payment however account a task PREPARE 4 75 HRS attempt l65 00 per hour and that he after the conclusion of the two years statement in testimony own Bayhi ultimately generated PREPARE PETITION FOR DIVORCE REVIEW his demand letters Bayhi allegedly spent forth 2d 1316 that community property settlement a statement specific breakdown by information 665 So have any available money he approximately of time Mr forth any Mr a Deutsch Kerrigan but claimed he did McKey Although the is account to prove Bayhi testified that he and However the years writing sent Ms or throughout the litigation despite the fact neither of these letters contained litigation on Mr open account and to allow her to pay him at the end of the June 27 95 an He further testified that because of this because he knew she did establishing of error Bayhi relied primarily amount hourly fee increased Mr amount account 669 So 2d 4l8 96 an of the oral agreement that his fee would be that were The App 1st Cir La Mr case an inaccuracy be disturbed absent manifest the existence of McKey had McKey certain credits to denied 96 0 194 La In this the to prove the handwritten time sheets he had introduce these time sheets into evidence not Mr sheets his secretary to to at knew she did have the money not of the start statements to Ms to Mr McKey during the entire that he although she asked for never fee would the end of the fee at any come advised Mr out marital out in the proceedings home s which was matter even a to was valued monthly or at Ms litigation He of the bill status statements the parties had agreed portion of the settlement obtained they had though bill Mr periodic billing of the nine year testimony that of the cash of the cash settlement When the sent to her course However she denied that case Bayhi that he needed his fee cover come he two statements McKey apprised of the Bayhi every time she asked about McKey would point Mr McKey because he statements one or copies of the billing McKey corroborated s Ms kept give these time receiving the billing send any not to Bayhi acknowledged that he with Ms dealing him and to pay litigation he did however Bayhi in Bayhi aside from insisted Ms practice was His secretary would then type However Mr send to his clients upset her According that Mr trial the end of each month had deviated from his normal at the at Bayhi further testified that his normal practice billing statements at kept throughout the litigation but Mr Bayhi did ever she asked discussed 2 an According hourly to Ms Bayhi simply told her that his fee McKey further get enough money ultimately settled approximately Ms testified that she had in the settlement to McKey received the 209 000 00 and a cash 2 At oral argument before this court counsel for Ms McKey purported to stipulate that the parties had agreed that Mr Bayhi s fee would be on an hourly basis We note however that pursuant to LSA C C P art 2164 an appellate court must render its appeal An new appellate evidence Cir 6 29 98 trial court Brown record on court cannot review evidence that is not in the record and cannot receive v st Associated Insurance Consultants Inc 714 So 2d 939 942 proceedings stipulation note that such a judgment upon the n 2 Because there is no 97 1396 p 5 n 2 La App 1 such stipulation in the record ofthe Furthermore we unable to consider the purported stipulation the appellate level would appear to be at odds with her position at we are in the conclusion of the trial court that Mr be based fee proceedings below and contrary to Ms McKey s testimony and the Bayhi failed to let Ms McKey know whether her bill was to or a lump sum payment 5 on an hourly settlement of 9l 000 00 settlement and Ms her understanding Mr Bayhi received approximately McKey received 25 000 00 4 Ms McKey testified that it after the settlement funds had been disbursed that been settled between her and Mr 003 from 38 000 this was everything had Bayhi because that had been their agreement all along After hearing all of this testimony evidence introduced Bayhi had failed attorney has an how that fee is that the by Bayhi the trial to prove his obligation to to be court In its oral case ultimately reasons arrangement some must only documentary evidence supporting the matter of its late The court the trial be made going The owed amount the stated account was not information concerning found that hourly an court found that the exhibit was not reliable presumably because supported by billing also stated that the exhibit did court to be and years after the final settlement in generated generation and because it The on an two was statements generated contemporaneously with the time the charges incurred noted that court almost Exhibit P 3 which this determined that Mr inform his client of what his fee is paid if was sheets Mr considering the documentary and the time Mr fee of it did not believe that the 165 00 parties Bayhi spent was had not agreed to such a fee detailed Although the unreasonable the not court time allegedly were provide sufficiently each task on or court indicated that Specifically the court stated What I do have is testimony from the plaintiff stating that he was familiar with the defendant and was going to allow her to accrue a bill until the conclusion But plaintiff should have gone a step further and let her know whether or not it was going to be an hourly fee or whether or not it was going to be a lump sum payment for representing her in this matter And listening to the defendant s testimony of not being informed even of filing an appeal with the First Circuit defendant 3Mr Bayhi draws some concern actually knew what also was to me going of whether on in this acknowledged receiving payments totaling 4A forensic C P A who worked on the case approximately 28 000 00 from this cash settlement 6 on or not the litigation and 1 500 00 from Ms behalf of Ms McKey McKey also received whether litigation was being pursued because of the implication of it being a first ruling by the Supreme Court or some type of landmark case and that was self gratification for counsel to have this matter pursued all the way up to the Supreme Court So the court feels that the 39 550 that was paid to counsel satisfied not or this counsel s attorney s fees Therefore the is court the suit dismissing against Ms McKey with the judgment that attorney fees has sic been Plaintiff s counsel did satisfied prove their not in case of terms additional attorney fees owed courts may not Appellate the appellate court does 2d 880 882 is La Furthermore 1993 clearly decision s given great deference by the appellate be court appellate wrong when factual credibility of witnesses the fact finder must 1 determines that manifestly erroneous Through Department of Transportation and Development 617 So State v finding unless findings reasonable factual basis for the a exist and 2 the not the record establishes that the Stobart trier of fact s factual a finds from the record that court finding of the trial disturb Thus when there is 2d 840 844 La 1989 a to findings credit court a based are witness Rosell the on testimony s ESCO 549 So v conflict in the testimony reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review although inferences may be witness clearly s face that So 2d are as story s clearly Rosell 549 So 2d the story itself is However statements a sums based s it is so allegedly due on its on assessment Credibility never over clearly evidence s we contradict the so implausible story find on its Rosell 549 inconsistent or or wrong for the fact finder to no manifest error his initial burden of open account The trial court credibility of the parties 7 determinations another Rosell 549 So 2d to meet of the or credit the witness contradictory of the record Bayhi failed at 844 evaluations and own objective evidence or not version of the facts that Mr feel its internally inconsistent absent virtually thorough review finding claim for or witness After court court may wrong when documents 844 45 at one reasonable appellate reasonable fact finder would a implausible accept the s at 845 in the trial proof on decision who his was provided contradictory testimony the judgment of the trial However court Although not not unable right s Bayhi equitable doctrine of quantum to recovery could recover meruit is based Under such circumstances the law implies for the labor and materials furnished 2298 art Rickv 1 Cir 2I1l 05 App measured by the 906 So 2d 536 which extent to of the time the suit is of the time the judgment is rendered attorney s However Bayhi s 5 fees we are the trial not absent v one The theory who benefits unjustly enriched thereby be promise The to pay reasonable a specific a amount of brought or according therefor contract 5 La compensation due is or to 6 amount Pinell 2004 0202 p has been enriched the other has been or impoverishment the circumstances as 2298 art Bayhi s claim for by the payment he received from the cash settlement theory of quantum meruit or court considered Mr whether the trial court parties two other witnesses testified However the trial court clearly testimony of the parties as they provided the most relevant testimony regarding on the what the agreement between them had been Mr Bayhi s petition is captioned 6Although that Louisiana is LSA C C P art 879 882 Thus Open Account we recognize pleading are required See pleading 854 Smith v Albrecht 2006 2072 p 5 La App 1 Cir 6 8 07 965 So 2d the threshold inquiry is whether Mr Bayhi has pled or raised without objection a fact state cognizable claim for his fees petition requested that he be paid a and that no Smith and the evidence introduced at trial Mr on 5 965 So 2d at 882 Bayhi s petition the Mr specifically alleged in the testimony of the Furthermore the witnesses continually raised issues relevant to a claim for quantum Bayhi s fee and the value ofMr Bayhi s services to Bayhi has stated a cognizable claim for recovery of his fees the reasonableness ofMr including McKey Accordingly Petition technical forms of 2006 2072 at p for his services and he reasonableness of his fees under the circumstances Ms claim for s Aside from the focused meruit the concept that unable to determine whether the trial claims under the affirm seemingly did under this alternative not LSA C C or court stated that it believed that Mr court satisfied was 539 the trial The extent of the enrichment is measured the trial a even one whichever is less Here Bayhi we the alternative basis of quantum Diesel Service Inc s impoverished as on on by the labor and materials of another should LSA C C Accordingly determine whether to entirely clear from the record consider whether Mr s issue the extent that it dismissed Mr we are Bayhi important pursuant to LSA RS 9 2781 review on considered Mr meruit court to open account on an recovery almost every on under the doctrine of quantum meruit 8 denied Mr Bayhi s to prove the claim record before us quantum meruit claim as an we are as the specifically because open account unable to appellate of the trial indicates that Mr pursuant analyze record is Bayhi it believed that Mr Mr to LSA RS Bayhi s incomplete Bayhi 9 2781 On the claim under the doctrine of the Specifically introduced the had failed family court transcript record of the divorce proceeding and community property settlement into the record of this matter However for reasons that has not are unclear in the record the been included in the exhibits interest of fairness sent to remand this we must this 7 court matter to family court Accordingly the trial record in the for further court proceedings CONCLUSION For the recovery judgment on foregoing reasons open account of the trial consistent with this we pursuant and court opinion i e to affirm the dismissal of plaintiff LSA R S 9 2781 However remand the to matter allow the trial claims for recovery under the doctrine of quantum meruit his or her own costs of the proceedings consider Each claims for we reverse for further court to s plaintiffs party shall bear appeal AFFIRMED IN PART REVERSED IN PART AND REMANDED 7 Attempts to obtain the family court record from the trial court have been unsuccessful 9
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