Allen D. H. Blanchard, RRPT d/b/a Radiation Consulting Services VS Cors and Bassett; Sacks, Weston, Smolinsky, Albert and Luber; Sacks and Smith, L.L.C. and Stuart H. Smith d/b/a The Law Office of Stuart H. Smith
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 2236 5sf ALLEN D H BLANCHARD RRPT D BA RADIATION CONSULTING SERVICES VERSUS CORS BASSETT SACKS WESTON SMOLINKSY ALBERT SACKS LUBER SMITH L AND C THE LAW OFFICES OF STUART H SMITH On Appeal from the 19th Judicial District Court Parish of East Baton Rouge Louisiana Docket No 477 Division I Section 24 896 Honorable R Michael Caldwell Judge Presiding Jerry F Pepper Baton Rouge LA Attorney for Plaintiff Appellant Allen D H Blanchard RRPT d ba Radiation Consulting Services John Stewart Tharp Taylor Porter Brooks Baton Rouge LA Phillips L P Attorney for Defendant Appellee Cors Bassett L C BEFORE PARRO KUHN AND McDONALD JJ Judgment rendered SEP 8 2010 PARRO 3 After a trial on the merits the trial court dismissed the plaintiff petition seeking s recovery of amounts allegedly owed by a defendant law firm for professional services rendered as an expert For the following reasons the judgment is affirmed in part and vacated in part and this matter is remanded with instructions Facts and Procedural History On November 3 2000 Allen D H Blanchard RRPT dba Radiation Consulting Services Blanchard filed a Petition on Contract against several law firms including Cors Bassett L to recover 43 allegedly owed for professional services C 892 rendered as a radiation expert in two cases pending before a federal district court in Kentucky In his petition Blanchard stated that he was retained on a contract basis in April 1995 to provide forensic services He alleged that the scope of his work for this engagement was subsequently reduced to writing in a letter dated November 24 1995 In his petition Blanchard stated he was to be compensated pursuant to progress payment requests made in the form of invoices submitted to Cors Bassett Invoiced charges were based on professional services at an agreed hourly rate together with expenses for travel and other incidental matters Pursuant to their agreement 40 percent of the fees for professional services was paid up front and the other 60 percent was to be paid after settlement or rendition of money judgments in the Kentucky cases Those cases were settled in 1996 Pursuant to LSAR 9 Blanchard formally S 2781 demanded payment in a letter dated April 8 1997 of the balance owed on several open and unpaid invoices from March 16 1995 through December 26 1995 totaling 00 892 43 Following the trial the trial court ruled in favor of Cors Bassett on the principal demand and dismissed all of Blanchard sclaims against it The reasons underlying the dismissal of his claims were set forth in oral reasons as follows Cors Bassett filed a reconventional demand seeking the return of 56 that it had previously 18 503 paid to Blanchard Its claims were based on allegations of fraud and misrepresentation Cors Bassett urged that troubling aspects of Blanchard qualifications and background had come to light in his s December 1995 deposition that destroyed his credibility as an expert and its clients chances of succeeding in the federal suits Z The trial court also dismissed Cors s Bassett reconventional demand against Blanchard 2 This suit is styled by Mr Blanchard as a petition on a contract In paragraph six it is alleged that he was retained on a contract basis Paragraph seven alleges that the agreement was reduced to writing and is evidenced by a letter to Mr Blanchard from Mr Jeffrey Harmon dated November 24 1995 and attach to the petition as exhibit A ed The petition and its exhibits were introduced at trial as plaintiff s exhibit A And at trial Mr Blanchard testified that the scope of the services agreed upon was set forth in plaintiff exhibits 01 and M s 0 1 is his resume with a quote position description closed quote which is also what exhibit M is attached thereto And that exhibit the position description seems to be a generic description with no specific reference to the underlying cases or to this engagement by Cors Bassett s It more or less a generic description of Mr Blanchard s available services The fax cover sheet to plaintiff exhibit 01 which was sent in s April 1995 also makes no reference to the underlying cases or any specific engagement The letter from Jeffrey Harmon that is attached as exhibit A to the petition and is offered as plaintiff exhibit A at trial is s dated November 24 1995 after much of Mr Blanchard swork had been done It refers to future agreements on the scope of work to be done to areas of work already undertaken and to a third scope of work which would involve him being available for a deposition No terms of payment or agreed upon price are included in any of these exhibits Now the testimony at trial from Mr Harmon and Mr Blanchard that Mr was Blanchard would invoice Cors Bassett periodically for an hourly rate for his services and his expenses Cors Bassett would pay the expenses and forty percent of the hourly fees upon receipt of the invoices and the remaining sixty percent of the fees would be paid at the conclusion of the underlying cases Plaintiff asserts that he is owed an additional 43 Based upon 892 this evidence plaintiff asserts that he has that he had a contract with or the defendants which the defendants breached by not paying him the full amount called for under the contract The defendant denies it owes plaintiff any further money and by reconventional demand seeks to recover the sums previously paid to the plaintiff on the grounds that plaintiff committed fraud andor intentional misrepresentation thus entitling them to return of the monies ve they paid During the trial I had a difficult time identifying any contract between these parties I assumed that the voluminous documents introduced at trial would show evidence of a contract Suffice it to say that based upon my interpretation of the law they did not Rather as asserted by the defendant in his passing reference the evidence shows only an open account 3 There was no evidence of an offer and acceptance of a proposal to perform specified work for a specified price Rather as evidenced by the correspondence between the parties it appears in the evidence in this case there was ongoing modification and or additions and subtractions to the scope of work to be done and the agreement was the work to be done would be paid on an hourly basis After examining the definition of open account found in ISAR 9 the trial court S 2781 concluded that Blanchard petition did not state a claim on an open account even s though the evidence showed only an open account However the court found that the petition did state claims for breach of contract but because the preponderance of the evidence did not show the existence of a contract Blanchard sclaims were dismissed Blanchard appealed contending that the trial court erred in finding that his services were provided on an open account basis disregarding the stipulations and admissions of the parties that established the existence of a contract for expert witness services granting an unpled exception of prescription and excluding expert testimony on the issue of business ethics 3 Analysis At the time Cors Bassett engaged the services of Blanchard ISAR S A 2781 9provided that w any person fails to pay an open account within fifteen hen days after receipt of written demand therefor correctly setting forth the amount owed that person shall be liable to the claimant for reasonable attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant iSubsection C of the statute defined open account as including any account for which a part or all of the balance is past due whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions Subsection C further provided that an open account also included debts incurred for professional services including but not limited to legal and medical services 3 The dismissal of Cors Any account which fits the definition of an open s Bassett reconventional demand has not been appealed 4 LSAR 9 was amended by 2001 La Acts No 1075 S 2781 1 and 2010 La Acts No 695 1 Unless otherwise noted the provisions referenced in this opinion are to those that were in effect prior to the 2001 amendment Subsection C was redesignated as subsection D by the 2001 amendment 4 account including but not limited to an account for professional services falls within the ambit of the statute See Frey Plumbing Co Inc v Foster 071091 La 2 08 26 996 So 969 972 2d Accordingly charges for professional services are generally characterized as open account claims which necessarily involve some type of contractual relationship between the parties See Dear v Mabile 93 1188 La App 1st Cir 5 637 So 745 747 see also Heck v Lafourche Parish Council 022044 94 20 2d La App 1st Cir 11 860 So 595 607 writ denied 040067 La 3 03 14 2d 04 19 869 So 837 2d The court in Mid South Analytical Labs Inc v Jones Odom Spruill Davis LLP 089 40 La App 2nd Cir 9 912 So 101 106 07 writ denied 052487 La 05 23 2d 06 17 4 926 So 513 noted that this court in Heck 860 So at 607 considered 2d 2d such factors as whether 1 the services provided are performed over time involving various projects 2 the total fee for the services is left open and 3 billing occurs on a regular basis by the provider of the professional services by sending regular periodic invoices setting forth the amounts for the services performed etc monthly statements 6 In Frey Plumbing Co Inc the supreme court concluded that the statutory provision defining the term open account does not require more than one transaction between the parties or that the parties anticipate future transactions See Frey Plumbing Co Inc 996 So at 972 To the extent Heck and other prior cases 2d held differently they were overruled by the court in Frey Plumbing Co Inc Id The extension of a line of credit is another factor that may cause a transaction to be classified as an open account See Acme Window Cleaners Inc v Natal Construction Co Inc 950448 La App 4th Cir 8 660 So 926 928 overruled in oart 95 23 2d Frey Plumbing Co Inc 996 So at 972 2d Although an open account need not involve more than one transaction between the parties nor contemplate future transactions open accounts ordinarily contemplate a series of transactions between the parties over an indefinite future period See Frey Plumbing Co Inc 996 So at 972 MidSouth Analytical Labs Inc 912 So at 2d 2d 6106 07 factors are not wholly determinative nor exclusive Mid South Analytical Labs Inc 912 So at These 2d 5 107 The total cost unlike a contract is generally left open or undetermined although the rate for specific services may be fixed such as an hourly rate Finally the service provider generally requests that the vendee or client keep current on payment of charges through regular billing and usually sends monthly invoices Id These factors were examined by the trial court in determining if the relationship between Blanchard was one on an open account s Blanchard services were performed The trial court found as follows over time and involved Blanchard billed for the work as it was performed various projects Future work was contemplated by the parties and no lump sum price was set for such work Billing occurred on a regular basis by the provider of the professional services Blanchard Blanchard objected to performing further services until payment on invoices was made current By waiting to collect 60 percent of his hourly fee Blanchard extended credit to Cors Bassett These findings are reasonably supported by the record and are not manifestly erroneous Based on our review of the law the jurisprudence and the record in this case we agree with the trial court that Blanchard claims although arising from a s contractual characterized relationship between as arising Blanchard and Cors Bassett can best be out of open account claims for professional services Accordingly we find no error in this determination In its oral reasons for judgment the trial court noted that Blanchard petition s did not state a claim on an open account The failure of the plaintiff to state a cause of action may be noticed by the court on its own motion LSA C art 927 P However in his petition Blanchard prayed for such other further legal and equitable relief as the Court shall deem necessary and proper Obviously Blanchard presented evidence of his open account relationship with Cors Bassett at the trial of this matter Thus the pleadings were expanded when evidence on that issue was presented at trial without objection and that issue shall be treated in all respects as if it had been raised by the pleading See LSAC art 1154 Accordingly the trial court erred in P C 7 We acknowledge that Cors s Bassett answer and reconventional demand admitted that plaintiff was retained by oral agreement to provide expert services 8 In so ruling Blanchard contends that the trial court sua sponte dismissed its claims on the basis of prescription See LSAC art 927 We find no merit to Blanchard assignment of error on this issue P C s 6 failing to rule on the merits of Blanchard claim on an open account s However the issue of prescription has been raised relative to Blanchard claim s on an open account Although Cors Bassett concedes it did not file an exception raising the objection of prescription in the trial court it was not precluded from raising the objection of prescription on appeal See LSA C art 2163 In its brief to this P court Cors Bassett stated that but of an abundance of caution it hereby pleads an exception of prescription for the first time in the appellate court Uniform Rules of Louisiana Courts of Appeal Rules 2 7 and 27 require that a 2 3 formal pleading urging the objection of prescription be filed with this court Therefore the assertion in Cors s Bassett appellate brief which is not a pleading was insufficient to bring such an exception before this court See Williams v State Department of Health and Hospitals 950713 La 1671 So 899 902 Echo 96 26 2d Inc v Power E ui ment Distributors Inc 961771 961772 La App 1st Cir 8 98 7 719 So 79 86 n writ denied 982392 La 11 729 So 555 2d 4 98 20 2d In the absence of a formal pleading the issue of prescription is not properly before this court Nonetheless because counsel for Cors Bassett at oral argument of this case requested the opportunity to file a formal pleading relative to the issue of prescription we remand this matter to the trial court to afford Cors Bassett that opportunity and to allow the trial court to consider the merits of Blanchard sclaim on open account as well as any exception raising the objection of prescription On remand Blanchard may amend his pleadings to cause them to conform to the evidence and to raise the issue based on an open account See LSAC art 1154 P C On appeal Blanchard urged that the trial court erred in excluding the testimony of his expert on the issue of business ethics If scientific technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact 9 Article 2163 provides The appellate court may consider the peremptory exception filed for the first time in that court if pleaded prior to a submission of the case for a decision and if proof of the ground of the exception appears of record If the ground for the peremptory exception pleaded in the appellate court is prescription the plaintiff may demand that the case be remanded to the trial court for trial of the exception 7 in issue a witness qualified as an expert by knowledge skill experience training or education may testify thereto in the form of an opinion or otherwise LSAC art E 702 Under Article 702 whether expert testimony is admissible turns upon whether it would assist the trier of fact to understand the evidence or to determine a fact in issue LSA C art 702 Comments1988 comment c E In response to questioning by the court Blanchard counsel stated that the s s expert testimony would substantiate the position that as a business personscientist s Blanchard conduct did not breach any business ethics standard After noting that LSAC art 702 authorizes expert witness testimony only if it assists the trier of fact in E reaching a determination the trial court found that the testimony of this expert would not help it in determining whether Blanchard was still a viable expert in light of his actions and whether that justified Cors s Bassett refusal to pay him for his work In so ruling the trial court noted that if Blanchard was no longer viable as an expert witness then it did not matter if Blanchard sactions were ethical or not Based on the record we find no abuse of discretion by the trial court 10 Decree For the foregoing reasons the judgment of the trial court is vacated to the extent that it dismissed Blanchard claims on an open account s Otherwise the judgment is affirmed This matter is remanded to the trial court for further proceedings consistent with this opinion Each party is to bear their own costs with respect to this appeal AFFIRMED IN PART VACATED IN PART REMANDED WITH INSTRUCTIONS 10 Broad discretion should be accorded the trial judge in his determination as to whether expert testimony should be held admissible and who should or should not be permitted to testify as an expert LSAC E art 702 Comments 1988 comment d 8
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