The opinion
MILLING, BENSON, * NO. 2020-CA-0115
WOODWARD, LLP
*
VERSUS COURT OF APPEAL
*
OLGA PAVLOVNA BLAKLEY, FOURTH CIRCUIT
M.D. *
STATE OF LOUISIANA
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APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2015-11551, DIVISION “B-1”
Honorable Rachael Johnson,
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Judge Tiffany G. Chase
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(Court composed of Chief Judge James F. McKay, III, Judge Terri F. Love, Judge
Roland L. Belsome, Judge Rosemary Ledet, Judge Tiffany G. Chase)
LOVE, J., CONCURS AND ASSIGNS REASON
BELSOME, J., DISSENTS FOR THE REASONS ASSIGNED BY J. LEDET
LEDET, J., DISSENTING WITH REASONS
Cody J. Acosta
Chadwick W. Collings
MILLING, BENSON, WOODWARD, LLP
68031 Captial Trace Row
Mandeville, LA 70471
COUNSEL FOR PLAINTIFF/APPELLEE
Joseph M. Bruno
Daniel A. Meyer
BRUNO & BRUNO LLP
855 Baronne Street
New Orleans, LA 70113
COUNSEL FOR DEFENDANT/APPELLANT
REVERSED AND REMANDED
JUNE 17, 2020
TGC
JFM This is a suit on an open account. Dr. Olga Blakley (hereinafter “Dr.
Blakley”), seeks review of the trial court’s November 26, 2019 judgment granting
the motion for summary judgment filed by Milling Benson Woodward, LLC
(hereinafter “Milling”). After consideration of the record before the Court, and the
applicable law, we reverse the judgment of the trial court and remand the matter
for further proceedings.
FACTS AND PROCEDURAL HISTORY
In May 2014, Dr. Blakley received correspondence from Dr. Cecilia Mouton
(hereinafter “Dr. Mouton”), the Director of Investigations for the Louisiana State
Board of Medical Examiners (hereinafter “the LSBME”). Dr. Blakley was
informed that an investigation was being conducted to determine whether she was
practicing in a manner which violated several provisions of the Louisiana Medical
Practice Act. The investigation related to medical procedures performed by Dr.
Blakley while practicing at Medical and Diagnostic Clinic (hereinafter “MDC”).
Dr. Mouton requested a meeting with Dr. Blakley to discuss the issues raised in the
letter. Mr. Normand Pizza (hereinafter “Mr. Pizza”), a partner at Milling, and his
firm were retained to represent Dr. Blakley in the LSBME’s investigation.
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The terms of Mr. Pizza and Milling’s representation were set forth in an
engagement letter dated May 14, 2014 (hereinafter “the Agreement”). The
Agreement stipulated that the maximum hourly charge would be $325.00 per hour
for Mr. Pizza’s work, with an associate rate of $180 per hour, and $100 per hour
for paralegals. The terms of the Agreement provided for monthly invoices that
detailed professional fees and costs incurred. Dr. Blakley accepted the terms of the
Agreement by signing and dating the document on May 28, 2014.
Over a period of several months, Milling billed Dr. Blakley for legal
services rendered. MDC paid Milling $44,556.25 on Dr. Blakley’s behalf. In
August 2014, Milling contacted Dr. Blakley regarding payment of its remaining
fees. After multiple attempts to negotiate payment of the balance owed, on
September 23, 2014, Mr. Pizza informed Dr. Blakley “the Firm has ordered us to
stop working on your case until your balance is paid.” Milling continued to issue
invoices for the months ending in October 2014, November 2014, and February
2015.
On December 7, 2015, Milling filed a petition seeking the balance owed on
the open account, $65,555.51, along with interest and attorney’s fees. During the
pendency of the litigation, Dr. Blakley’s insurer, Capson, paid Milling $5,759.54.
Milling filed a motion for summary judgment on September 13, 2019 to recover
the remaining $59,795.97 balance. In support of its motion, Milling offered the
invoices, the affidavits of Mr. Pizza and Mr. Thomas Schneidau (an associate at
Milling), and accompanying exhibits including correspondence between the
parties. Dr. Blakley opposed, offering her own affidavit and supporting exhibits
questioning the reasonableness and accuracy of Milling’s fees.
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The hearing on Milling’s motion for summary judgment was held on
October 19, 2019. Ruling from the bench, the trial court found that Milling
sufficiently made a prima facie case that it was entitled to recover the balance
owed on the open account. The judgment was reduced to writing on November 26,
2019, wherein Milling was awarded $59,795.97 for legal services rendered,
$10,947.17 in accrued interest, plus additional prospective interest and reasonable
attorney’s fees. Dr. Blakley timely filed this devolutive appeal.
STANDARD OF REVIEW
“Appellate courts review the grant or denial of a motion for summary
judgment de novo, employing the same criteria that govern the trial court’s
determination of whether summary judgment is appropriate.” Maddox v. Howard
Hughes Corp., 2019-0135, p. 4 (La.App. 4 Cir. 4/17/19), 268 So.3d 333, 337
(citations omitted).
DISCUSSION
In her sole assignment of error, Dr. Blakley avers the trial court erred in
granting Milling’s motion for summary judgment, as there remain genuine issues
of material fact as to the accuracy of the amount of Milling’s fees. We agree.
A suit on an open account is provided for in La. R.S. 9:2781. The statute
defines an open account as any account that has a full or partial balance that is past
due, including debts incurred for professional services including legal services.
La. R.S. 9:2781(D). The mover in an action on an open account must prove his
claim by a preponderance of the evidence. See Capital One Bank (USA), NA v.
Sanches, 2013-0003, p. 5 (La.App. 4 Cir. 6/12/13), 119 So.3d 870, 873 (citing
CACV of Colorado, LLC v. Speihler, 2009-0151, p. 2 (La.App. 3 Cir. 6/3/09), 11
So.3d 673, 675). In order to prove a prima facie case on an open account, the
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mover must show that a record of the account was kept in the course of business
and provide evidence supporting its accuracy. Id.
When Milling presented its prima facie case, the burden then shifted to Dr.
Blakley “to produce factual support sufficient to establish the existence of a
genuine issue of material fact” as to the accuracy of the amount owed on the open
account. La. C.C.P. art. 966(D)(1); see also Sanches, 2013-003, p. 5, 131 So.3d at
873. In Maddox, 2019-0135, p. 5, 268 So.3d at 337, this Court stated:
A genuine issue is one as to which reasonable persons could disagree;
if reasonable persons could reach only one conclusion, there is no
need for trial on that issue, and summary judgment is appropriate.
Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94),
639 So.2d 730, 751. “A fact is material when its existence or
nonexistence may be essential to the plaintiffs [sic] cause of action
under the applicable theory of recovery; a fact is material if it
potentially insures or precludes recovery, affects a litigant's ultimate
success, or determines the outcome of the legal dispute.” Chapital v.
Harry Kelleher & Co., Inc., 13-1606, p. 5 (La. App. 4 Cir. 6/4/14),
144 So.3d 75, 81. Whether a fact is material is a determination that
must be made based on the applicable substantive law. Roadrunner
Transp. Sys. v. Brown, 17-0040, p. 7 (La. App. 4 Cir. 5/10/17), 219
So.3d 1265, 1270 (citing Smith, supra).
The applicable substantive law before us dictates the accuracy of the legal fees
billed is a material fact.
In opposition to Milling’s motion for summary judgment, Dr. Blakley
attached her responses to discovery. The record reflects that on September 23,
2014, Milling informed Dr. Blakley that it would cease representation due to the
unpaid balance on her account. Specifically, the notice provides that “if the Board
does proceed against you… we will not represent you unless your balance is made
current.” However, the invoices demonstrate that Milling billed Dr. Blakley in
October 2014 for work performed on her case. Additionally, Milling submitted
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invoices for November 2014 and February 2015. As previously noted, a fact is
material if it has the potential to determine the outcome of a case. Id. We find the
latter creates a genuine issue of material fact regarding the accuracy of the legal
fees billed, thus affecting the amount due to Milling.
DECREE
The November 26, 2019 judgment of the trial court granting summary
judgment in favor of Milling is reversed and the matter is remanded to the trial
court for further proceedings.
REVERSED AND REMANDED
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