Opinion
2012 CA 1906
07-01-2013
PRECISION CONSULTANTS, LLC v. HURRICANE LEGAL CENTER, LLC
Scott D. Brownell Covington, Louisiana Attorney for Plaintiff/Appellee, Precision Consultants, LLC Al J. Robert, Jr. Lawrence J. Centola, Jr. New Orleans, Louisiana Attorneys for Defendant/Appellant, Hurricane Legal Center, LLC
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
22nd Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Trial Court No. 2011-11393
The Honorable August J. Hand, Judge Presiding
Scott D. Brownell
Covington, Louisiana
Attorney for Plaintiff/Appellee,
Precision Consultants, LLC
Al J. Robert, Jr.
Lawrence J. Centola, Jr.
New Orleans, Louisiana
Attorneys for Defendant/Appellant,
Hurricane Legal Center, LLC
BEFORE: PARRO, WELCH, AND DRAKE, JJ.
DRAKE , J.
This is an appeal by defendant, Hurricane Legal Center, LLC (HLC) following the granting of a motion for summary judgment in favor of plaintiff, Precision Consultants, LLC (Precision). In addition, the trial court awarded damages to Precision in the amount of $229,386.29. We affirm.
FACTS AND PROCEDURAL HISTORY
This matter arises out of a contract dispute between HLC, a law firm that was formed to provide legal services to property owners who sustained damages as a result of Hurricane Katrina, and Precision, an adjusting service. At the beginning of 2008, HLC retained Precision to provide estimating services, including inspecting, examining, and appraising damages, regarding the properties belonging to HLC clients following Hurricane Katrina. Precision was also to issue written reports and attend mediations. Kenneth Savage is the sole principal and member of Precision. Precision claimed that it entered into an agreement with HLC, wherein Precision was to be paid $1000 per file handled for its services. The first $250 was to be paid after Precision submitted its written report. The balance of fees was to be paid upon HLC entering into a settlement or other recovery for its clients, or no later than eighteen (18) months after Precision rendered services even if HLC obtained no settlement or recovery. In support of its contentions, Precision produced a document that it claimed evidenced the agreement between the parties even though the agreement was never signed. Sometime in late 2008 or early 2009, the parties agreed that, due to a change in circumstances, Precision would forego a walk through of certain properties and reduce its fees for those cases to $600.
Precision filed suit against HLC for failure to pay the entire amount agreed upon by the parties. After a general denial by HLC, Precision filed a motion for summary judgment claiming that it had not been paid fully for the services it had provided to HLC. It supported the motion for summary judgment with an affidavit of Mr. Savage and other documents, including emails, letters, and checks showing payments from HLC.
In response to the motion for summary judgment and supporting evidence of Precision, HLC filed an opposition and produced an affidavit of Mr. Sassoon Sales. Mr. Sales, principal of HLC, agreed that HLC hired Precision, but argued that the terms of the agreement were different from what was claimed by Precision. Precision performed services for HLC for approximately two years. HLC contended that the terms of the agreement had changed many times during the course of the relationship. It is undisputed that HLC paid Precision for a portion of what it claims it earned.
After a hearing on the motion for summary judgment, the trial court rendered judgment in favor of Precision and awarded $229,386.29 in damages, denied Precision's request for attorney fees, and designated the judgment as final pursuant to La. C.C.P. art. 1915. It is from this judgment that HLC appeals.
ASSIGNMENTS OF ERROR
HLC assigns as error the following:
(1) The trial court incorrectly required it to disprove its agreement with Precision;
(2) The trial court erred in granting the summary judgment since Precision failed to establish a prima facie case;
(3) The trial court erred in finding a contract existed between HLC and Precision since Precision did not provide corroborating evidence to establish an oral contract.
STANDARD OF REVIEW
In determining whether summary judgment is appropriate, appellate courts review summary judgment de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Brassette v. Exnicios, 11-1439 (La. App. 1 Cir. 5/14/12), 92 So. 3d 1077, 1081, writ denied, 12-1583 (La. 11/9/12), 100 So. 3d 831 (citing Sanders v. Ashland Oil. Inc., 96-1751 (La. App. 1 Cir. 6/20/97), 696 So. 2d 1031, 1035, writ denied, 97-1911 (La. 10/31/97), 703 So. 2d 29). Furthermore, an appellate court asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Brassette, 92 So. 3d at 1081. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Id.
LAW AND ANALYSIS
A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. Gonzales v. Kissner, 08-2154 (La. App. 1 Cir. 9/11/09), 24 So. 3d 214, 217. A motion for summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(B). The summary judgment procedure is expressly favored in the law and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. LSA-C.C.P. art. 966(A)(2).
The mover bears the burden of proving that he is entitled to summary judgment. LSA-C.C.P. art. 966(C)(2). When the mover will bear the burden of proof at trial, that party must support his motion with credible evidence that would entitle him to a directed verdict if not controverted at trial. Mines v. Garrett, 04-0806 (La. 6/25/04), 876 So. 2d 764, 766. Such an affirmative showing will then shift the burden of production to the party opposing the motion, requiring the opposing party either to produce evidentiary materials that demonstrate the existence of a genuine issue for trial or to submit an affidavit requesting additional time for discovery. Mines, 876 So. 2d at 766-67. If the mover has put forth supporting proof through affidavits or otherwise, the adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. LSA-C.C.P. art. 967(B). Mitchell v. Southern Scrap Recycling, L.L.C., 11-2201 (La. App. 1 Cir. 6/8/12), 93 So. 3d 754, 756-57, writ denied, 12-1502 (La. 10/12/12), 99 So. 3d 47.
In summary, when the mover will bear the burden of proof at trial, the initial burden of proof on a motion for summary judgment remains with the mover to show that no genuine issue of material fact exists. Lewis v. Four Corners Volunteer Fire Dept., 08-0354 (La. App. 1 Cir. 9/26/08), 994 So. 2d 696, 699. Once the mover makes a prima facie showing that the motion should be granted, the burden shifts to the non-moving party to present evidence demonstrating that a material factual issue remains. Id. "The failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion." Id. (Emphasis in original). "Affidavits that are devoid of specific underlying facts to support a conclusion of ultimate "fact" are not legally sufficient to defeat summary judgment." Id. at 700. Initial Burden of Proof and Prima Facie Case
HLC's first assignment of error is that the trial court incorrectly shifted the burden of proof. In order to determine if Precision carried its burden of proof, we first must determine if Precision made a prima facie showing that the motion for summary judgment should be granted by proving that an oral contract existed. A party claiming the existence of a contract has the burden of proving that the contract was perfected between himself and his opponent. Estate of Mayeaux v. Glover, 08-2031 (La. App. 1 Cir. 1/12/10), 31 So. 3d 1090, 1095, writ denied, 10-0312 (La. 4/16/10), 31 So. 3d 1069. It is well established in the jurisprudence of Louisiana that the party asserting a verbal contract has the burden to prove the contract. Haney v. Maryland Casualty Co., 74 So. 2d 332, 333 (La. App. 1 Cir. 1954).
Louisiana Civil Code article 1846 states that an oral contract over $500 must be proved by "at least one witness and other corroborating circumstances." In Peter Vicari General Contractor, Inc. v. St. Pierre, 02-250 (La. App. 5 Cir. 10/16/02), 831 So. 2d 296, 301, the fifth circuit states:
Under La. C.C. art. 1846, one witness and other corroborating circumstances must prove an oral contract for a price in excess of $500. Only general corroboration is required. Gulf Container Repair Services, Inc. v. FIC Business & Financial Centers, Inc., 98-1144 at p. 6 (La. App. 5th Cir. 3/10/99), 735 So. 2d 41, 43. It is not necessary that plaintiff offer independent proof of every detail. Id. The manifest error standard of review applies to a factual finding by the trier of fact in this regard and will not be overturned unless it is clearly wrong. Gulf Container Repair Services, Inc., 98-1144 at p. 6, 735 So. 2d at 43.
To meet the burden of proof of an oral contract by a witness and other corroborating circumstances, a party may serve as his own witness and the "other corroborating circumstances" may be general and need not prove every detail of the plaintiff's case. Pennington Const., Inc. v. R A Eagle Corp., 94-0575 (La. App. 1 Cir. 3/3/95), 652 So. 2d 637, 639. However, the corroborating circumstances that are required must come from a source other than the plaintiff. Id.
Precision, the mover, supported its motion for summary judgment with the affidavit of Mr. Savage, the sole member and principal of Precision and the person who met with and entered into the agreement with HLC. The evidence submitted by Precision established that: (1) Mr. Savage met with Mr. Jung Park (aka John Park) of HLC, and entered into an agreement wherein Precision was to provide services and be paid $1,000 per file handled; (2) the first $250 was to be paid after submission of the written report by Precision; (3) the balance of fees was to be paid when HLC entered into a settlement or other recovery for its clients, or no later than eighteen (18) months after Precision rendered services even if HLC obtained no settlement or recovery; (4) the writing evidencing the agreement between HLC and Precision was never signed by either party; (5) Precision believed the parties had an agreement and handled over 700 files for HLC without complaint as to its services; (6) sometime in late 2008 or early 2009, upon request by HLC, Precision agreed to forego a walk through of certain properties, to use documents provided by HLC to create the written report, and to reduce its fees to a flat $600 for those files referred to as "Narrative Files"; and (7) HLC again attempted to alter the terms of the agreement in May 2010, but Precision declined to do so.
In addition to the affidavit of Mr. Savage, Precision also attached a May 29, 2010 letter from HLC, which attempted to alter the agreement terms; numerous emails and letters from Precision demanding payment in accordance with the original agreement terms and declining to accept any additional alterations to the terms of the original agreement; lists prepared by Precision as to the amount owed; and letters and copies of checks evidencing payments made to Precision after suit was filed.
After a de novo review of the record, this court agrees with the trial court that Precision carried its burden of proving an oral contract existed. Precision provided the testimony of Mr. Savage, as well as other documentary evidence that an agreement existed. Documentary evidence may be sufficient to establish an oral contract. See C T Traina Plumbing & Heating Contractors v. Palmer, 580 So. 2d 525 (La. App. 4 Cir.), writ denied, 584 So. 2d 1166 (La. 1991). Precision produced the unsigned writing evidencing the agreement. Precision also produced a letter dated May 29, 2010, from Mr. Sales, which stated that although there was discussion as to the exact terms of the agreement, "[nevertheless we will proceed on the basis that the document provided to us by Ken Savage represents an agreement." The May 29, 2010 letter also evidences an attempt by HLC to alter orally the terms of the original agreement of which HLC has provided no corroborating circumstances. Precision also produced a June 2, 2010 email disagreeing with the provisions attempting to alter the original agreement by HLC in the May 29, 2010 letter. On June 22, 2010, Precision sent HLC a demand letter for the entire amount it was owed based upon the original agreement. Precision also produced evidence of payment by HLC in the form of correspondence and a check which evidenced payment for ten of the outstanding cases in an amount consistent with the terms of the original agreement. Precision further produced numerous checks that were issued by HLC after the suit in this matter was filed. HLC contends that some of the checks illustrate that the terms of the original agreement were altered. However, this court finds otherwise. While HLC may have paid Precision in different amounts, the totality of the evidence shows that Precision continually attempted to collect according to the original agreement. HLC has failed to put forth any evidence that Precision agreed to alter the original agreement other than the reduction to $600 on the "Narrative Files." We find that the evidence in the record supports the trial court's conclusion that an oral agreement was entered into between Precision and HLC according to the terms set forth by Precision. Precision carried its prima facie burden. Burden of Production Shifts to Defendant
Precision asserts that HLC created the writing evidencing the agreement between the parties. HLC states in the affidavit of Mr. Sassoon Sales, the principal of HLC, that the writing was given to it by Precision. However, in its own brief to this court, HLC states that the writing was "prepared by a Hurricane Legal Center administrator." This court finds that the action of the parties comports with the terms of the agreement, regardless of who prepared the document.
Since we have determined that Precision carried its burden of proof as to the existence and terms of the oral agreement, the burden then shifted to HLC to produce evidence setting forth specific facts showing that there is a genuine issue for trial. LSA-C.C.P. art. 967(B).
In response to the motion for summary judgment, HLC filed an opposition to the summary judgment, which was supported by an affidavit of Mr. Sales, the principal for HLC. The affidavit of Mr. Sales stated the following: (1) at the beginning of 2008, an office administrator for HLC hired a few estimators to provide estimates of repairs for damage caused by Hurricane Katrina; (2) the office administrator met with Mr. Savage; (3) as a result of that meeting, Mr. Sales received the agreement memorialized in writing referred to by Mr. Savage, but did not sign the document because he did not understand it; (4) Despite the fact that no signed contract existed, "Mr. Savage began receiving assignments and producing estimates anyway"; (5) Precision performed services for HLC for approximately two years; (6) HLC began to have cash flow problems and requested Precision to reduce its fee on some files to $600, which Precision agreed to do; (7) HLC attempted to make other oral changes to the agreement with Precision; (8) Mr. Savage was not accepted as an expert in some of the cases HLC handled; (9) Precision attempted to collect payment from HLC based on the original agreement numerous times; (10) HLC had a policy to pay estimators when HLC received its payment; (11) HLC learned that some of its clients had retained more than one law firm; (12) HLC told Precision that it could only pay for the initial $250 for these cases; and (13) Precision acquiesced in the fee reduction.
Louisiana Code of Civil Procedure article 967(A) provides that "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Affidavits that are devoid of specific underlying facts to support a conclusion of ultimate "fact" are not legally sufficient to defeat summary judgment. Lewis, 994 So. 2d at 700.
HLC relies on the fact that the document between the parties, which Precision contends evidences the agreement, was never signed. Louisiana Civil Code article 1927 declares that an acceptance may be made "orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent." HLC acted as though there was an agreement with Precision and paid Precision according to the terms claimed by Precision which is evidenced in the unsigned document prepared by HLC. Furthermore, HLC utilized the services of Precision for approximately two years. HLC also sent Precision a letter on May 29, 2010, which stated, "we will proceed on the basis that the document provided us by Ken Savage represents an agreement." Even though the agreement between Precision and HLC was never signed, the words and actions of HLC show the intent of the parties to be bound by the oral contract. See Riverside/Terra Corp. v. K & W Agricultural Services, Inc., 540 So. 2d 456 (La. App. 1 Cir.), writ denied, 541 So. 2d 1391 (La. 1989).
The only evidence submitted by HLC is the affidavit of Mr. Sales. We agree with the trial court that the affidavit of Mr. Sales is "self-serving [and] doesn't contain any truly factual genuine issues of material facts." The vast majority of the affidavit pertains to HLC's attempts to alter the terms of the agreement between HLC and Precision. In opposition to the motion for summary judgment, HLC raised as an issue whether there was sufficient corroborating evidence that supported the finding that there was an oral agreement originally created. Both the trial court and this court have found that there was sufficient corroborating evidence of an oral agreement between HLC and Precision. However, although HLC attempts to show that the terms of the original agreement were altered by numerous other oral agreements, HLC presents absolutely no corroborating evidence to support its own assertions of oral agreements. Furthermore, Mr. Sales twice states in his affidavit that Precision "acquiesced" in certain oral alterations to the original agreement without explanation as to how that acquiescence occurred or submitting corroborating evidence illustrating that acquiescence. Louisiana law requires corroborating evidence to prove an oral agreement. La. C.C. art. 1846. HLC has provided no corroborating evidence to support its claim of multiple oral alterations to the original agreement.
The affidavit of Mr. Sales also states that HLC attempted to alter the terms of the original agreement after Mr. Savage was not accepted as an expert in some of the cases. HLC has not shown that Precision ever agreed to have its payments be contingent upon Mr. Savage being accepted by an expert. HLC did not submit any evidence from the office administrator who conducted the negotiations regarding any aspect of the agreement originally made. Furthermore, HLC did not submit any answers to interrogatories or admissions to support its contentions. There is no corroborating evidence in the record as to any alterations made to the original agreement except for the one pertaining to the "Narrative Files."
The actions of HLC in employing the services of Precision for approximately two years and making payments in accordance with the terms of the original agreement prove what agreement the parties made. The affidavit submitted by HLC proves nothing more than that HLC attempted several times to alter the terms of the original agreement as hardships arose concerning their own clients, such as some of HLC's clients having contracted with two different legal firms, and HLC not receiving settlements in all its clients' cases. There is absolutely no evidence that Precision ever agreed to any such alterations. We note that the parties freely negotiated the terms of the agreement in an arms-length transaction.
A court is not to be concerned with the wisdom or folly of a contract. It cannot annul or amend it simply to avoid some supposed hardship arising therefrom. Its duty is confined to the ascertainment of the limits of the rights and obligations of the contracting parties as they have defined them for themselves. Weeks v. T.L. James & Co. Inc., 626 So. 2d 420, 424 (La. App. 3 Cir. 1993), writs denied, 93-2909, 93-2936 (La. 1/28/94) 630 So. 2d 794. As such, a court cannot undermine a contract simply because it was a bad deal for one of the parties. Id.Amitech U.S.A., Ltd. v. Nottingham Const. Co., 09-2048 (La. App. 1 Cir. 10/29/10), 57 So. 3d 1043, 1055, writ denied, 11-0866 (La. 6/17/11), 63 So. 3d 1036, and writ denied, 11-0953 (La. 6/17/11), 63 So. 3d 1043. This court cannot alter the agreement between the parties simply because it did not turn out as expected by HLC.
Once Precision carried its initial burden of proof of its case, the burden shifted to HLC to produce evidence of a genuine issue of material fact. HLC has not produced evidence that there is a genuine issue of fact. Therefore, summary judgment was appropriate.
CONCLUSION
For the foregoing reasons, the judgment of the trial court is affirmed. Costs of the appeal are assessed to appellant, Hurricane Legal Center, LLC.
AFFIRMED. PRECISION CONSULTANTS, LLC
VERSUS
HURRICANE LEGAL CENTER, LLC
NO. 2012 CA 1906
WELCH, J., dissenting.
I respectfully dissent. It is undisputed that Precision was retained by HLC to provide appraisal services in connection with property claims by HLC clients and that HLC agreed to compensate Precision for those services. The problem in this case is that the parties dispute the fee arrangement between them. HLC claims that the fee arrangement was fluid in nature and was modified by the parties due to changing circumstances. Precision claims that the fee terms set forth in Exhibit B reflects the parties' agreement regarding compensation throughout the course of the parties' contractual relationship.
The evidence relied on by Precision in support of its motion for summary judgment does not demonstrate the absence of material issues of fact regarding the parties' fee arrangement. Precision relies on its own self-serving affidavit and documentary evidence it claims supports the assertions therein. It is Precision's position that Exhibit B reflects the parties' true agreement on the fee it was to be paid. However, Exhibit B was never signed and does not serve as objective evidence of the parties' fee agreement. Instead, Precision attempts to show through documents that the parties acted as though Exhibit B was their agreement. In so doing, it chiefly relies on Exhibit C, wherein Mr. Sales stated that HLC would "proceed on the basis that the document provided to us by Ken Savage represents an agreement." However, in that same letter, Mr. Sales stated that although there were discussions by the parties, "there was confusion to the point where it is difficult to know what exact terms were agreed to." Mr. Sales' letter squarely takes a position contrary to the terms set forth in Exhibit B. Exhibit B provides that the amount set forth in the pay schedule shall be paid after 18 months of services rendered even if HLC obtained no settlement or recovery. However, Mr. Sales' letter sets forth specific instances in which HLC would not agree to pay the total charge, including cases where HLC did not expect to receive settlement funds at all, such as where the client settled the claim through another attorney, and where only a narrative had been prepared and HLC had to use another estimator to prepare an estimate. The letter also states that in other instances, HLC would consider making the full payment even where there was an unusual reason for the settlement funds not being received. Clearly, Exhibit C is not an acknowledgment by Mr. Sales that the rate schedule and terms set forth in Exhibit B were to be in effect in all instances whether settlement was achieved or not. Moreover, Exhibit I, copies of checks paid by HLC to Precision, demonstrate that different amounts were paid, and Precision acknowledged that for certain files, a different agreement was reached. This acknowledgement and the fact that different amounts were paid to Precision supports HLC's theory that there were subsequent modifications of the oral contract and belies Precision's insistence that Exhibit B represents the parties' true agreement on the fee arrangement.
While Precision may have "believed" that it had an agreement with HLC to be paid a flat fee on all of its files regardless of changing circumstances or the impossibility of settlement, a statement of belief is not sufficient to support a motion for summary judgment. A motion for summary judgment is rarely appropriate for disposition of a case requiring a determination of subjective facts such as intent or knowledge. Biggs v. Cancienne, 2012-0187 (La. App. 1st Cir. 9/21/12), 111 So,3d 6, 10. This is so because subjective facts call for credibility evaluations and the weighing of testimony which are reserved to the trier of fact. See Read v. Willwoods Community, 11-222 (La. App. 5th Cir. 2/14/12), 88 So.3d 534, 538, writ denied, 2012-0616 (La. 4/27/12), 86 So.3d 629.
For these reasons, I find that Precision failed to demonstrate that no genuine issues of material fact exist as to the agreed-upon rate of compensation for its services. Because it did not carry its burden on the motion for summary judgment, the burden of production never shifted to HLC. In this case, the trial court ultimately determined the contracting parties' intent as to the fee arrangement, a subjective fact, by weighing the evidence and making credibility determinations. In so doing, the trial court erred. Therefore, I would reverse the summary judgment entered in favor of Precision and remand this case to the trial court for further proceedings.