Donald T. Brown, DDS v. Douglas D. McGinity, McGinity Law Firm, LLC and Hannah Chokr

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2021 CA 1405

1
DONALD T. BROWN, DDS

VERSUS

UA DOUGLAS D. McGINITY McGINITY LAW FIRM LLC
AND HANNAH CHOKR

Judgment Rendered.
FJUL 14 2022

Appealed from the 22nd Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Case No. 2016- 13910

The Honorable Ellen M. Creel, Judge Presiding

Thomas H. Huval Counsel for Plaintiff/Appellee
Stefini W. Salles Donald T. Brown, DDS
Covington, Louisiana
and

Neil H. Mixon
Baton Rouge, Louisiana

Kevin R. Tully Counsel for Defendant/Appellants
H. Carter Marshall Douglas D. McGinity and McGinity Law
New Orleans, Louisiana Firm, LLC

BEFORE: WHIPPLE, C. J., LANIER, AND HESTER, JJ.

LANIER, J.

Defendants, Douglas D. McGinity and
McGinity Law Firm, LLC

hereinafter sometimes collectively referred to as " McGinity"), seek this court's

review of the district court' s December 30, 2020 judgment granting summary

judgment in favor of plaintiff, Donald T. Brown, DDS. For the reasons that

follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Zienab Chokr, a/ k/ a Zara Chokr, was injured in an automobile accident on

August 14, 2015. Zara was a minor at the time of the accident. Subsequent to the

accident, Zara' s mother, Nisrine Chokr, retained Douglas D. McGinity and the

McGinity Law Firm, LLC to represent Zara in connection with her claim for

personal injuries. According to the record, Mr. McGinity contacted Dr. Brown in

December 2015 regarding potential treatment for Zara for a TMJ ( temporal

mandibular joint) injury. Zara was initially evaluated by Dr. Brown on December

10, 2015, at which time her mother was provided with a Predetermination Estimate

of Costs for Treating TMJ Dysfunction (" the estimate"). The estimate set forth in

detail the various phases of potential treatment and the estimated costs associated

with same. Ms. Chokr signed the estimate on December 10, 2015. On December

21, 2015, Dr. Brown's office staff spoke with Mr. McGinity regarding the initial

evaluation of Zara and faxed the estimate to Mr. McGinity' s office.

The estimate provided that the cost of "PHASE I - TMJ THERAPY" would

be approximately $ 5, 000. 00 to $ 10, 300. 00 and would include diagnostic studies; a

therapeutic upper and/ or lower splint; physical modalities such as ultrasound

treatments, moist heat, and infrared therapy; and regular office visits for evaluation

and adjustment of the splint. The estimate indicated that the total cost of Phase I

varies with each patient" and that "[ t] he more severe the condition, the longer it

will take to alleviate the discomfort and restore normal function." It further

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explained what the TMJ Diagnostic Study entailed and that the average cost of the

study is $ 3, 359. 00. With regard to payment, the estimate clearly specified that a

deferred payment plan was available, with an initial payment of $1, 680. 00 to begin

treatment and monthly payments of $237. 00 thereafter until the balance was paid

in full. The estimate provided further that a monthly statement would be provided

showing the balance due on the account. According to the record, monthly

statements were sent to McGinity in 2016 for the months of April -August.

On March 9, 2016, Mr. McGinity signed a Payment Agreement (" payment

agreement")
with Dr. Brown's office in which Mr. McGinity, as the responsible

party, agreed to use the deferred payment plan, with the initial payment of

1, 680. 00 being due by March 21, 2016, followed by the monthly payments of

237. 00 beginning on April 21, 2016. On that same date, Mr. McGinity also

signed a Medical Reports & Doctor's Lien (" lien agreement"), in which he

acknowledged that he was to " withhold such sums from any settlement, judgment,

or verdict, as may be necessary to adequately protect" Dr. Brown.

Ms. Chokr signed the same lien agreement on March 21, 2016. Ms. Chokr

authorized Mr. McGinity to pay Dr. Brown directly from any settlement that may

be paid as a result of Zara's injuries. However, Ms. Chokr also acknowledged that

she was personally and fully responsible to Dr. Brown for all of the invoices

submitted by him for medical and dental services rendered to Zara and that

payment to Dr. Brown was not contingent upon any settlement that Zara may

eventually receive. Moreover, by signing the lien agreement, Ms. Chokr agreed

that no distribution of any settlement proceeds could be made to her or Zara until

Mr. McGinity had confirmed, in writing, that Dr. Brown' s charges have been paid

in full.

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On March 10, 2016, Mr. McGinity's office paid the $ 1, 680. 00 initial

payment as set forth in the estimate and the payment agreement. Zara's second

visit with Dr. Brown was on March 21, 2016, which included a detailed series of x-

rays and other computer diagnostics; on March 30, 2016, Zara received her

mandibular splint. One monthly payment in the amount of $237. 00 was made on

Zara's account for April 2016.

On April 4, 2016, Dr. Brown provided Mr. McGinty with a detailed expert

report outlining his findings and opinions regarding his treatment of Zara. Dr.

Brown continued to treat Zara with follow-up visits on April 4, 2016, April 11,

2016, April 28, 2016, and May 17, 2016. According to Dr. Brown's records, the

charges for his treatment of Zara totaled $ 5, 694. 00. No further payments were

made by Mr. McGinity or by Ms. Chokr after the $ 237. 00 payment made in April

2016, leaving a remaining balance on Zara's account of $3, 777. 00.

According to Dr. Brown, he learned in late July 2016 that Mr. McGinity had

settled Zara's claims for personal injuries arising out of the August 14, 2015

accident. Dr. Brown alleged that he was never advised of the settlement by either

Mr. McGinity or Ms. Chokr. Written demand for payment was made on Mr.

McGinity on August 4, 2016, and on Ms. Chokr on August 24, 2016.

After several unsuccessful attempts to collect the unpaid balance from Mr.

McGinity, Dr. Brown filed suit on open account pursuant to La. R. S. 9: 2781

naming as defendants Mr. McGinity, McGinity Law Firm, LLC, and Ms. Chokr.

Dr. Brown sought to recover the balance due on the account, $ 3, 777. 00, plus

reasonable attorney fees, court costs, and interest.'

1 Dr. Brown subsequently filed a first supplemental and amending petition, further outlining his
claims against McGinity and Ms. Chokr.

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4

Mr. McGinity and Ms. Chokr both answered Dr. Brown' s petitions,

generally denying the allegations set forth by Dr. Brown. Ms. Chokr further

reconvened against Dr. Brown, seeking damages for medical malpractice in

connection with his treatment of Zara.2

Thereafter, Dr. Brown filed a motion for summary judgment asserting that

there was no genuine issue as to any material fact in dispute and that he was

entitled to summary judgment for the contract amount due. Dr. Brown argued that

there was no dispute that he provided medical treatment to Zara; that the treatment

was authorized by Ms. Chokr; that payment of the charges was guaranteed by

McGinity and Ms. Chokr; that the amount billed was on the low end of the

estimated fees; and that McGinity and Ms. Chokr had signed documents indicating

their agreement that they were responsible for the payment of the charges incurred

for Zara's treatment and that funds received from any settlement would not be

distributed until Dr. Brown was paid in full. McGinity opposed Dr. Brown's

motion for summary judgment. Citing La. Civ. Code art. 1973, McGinity argued

that any contract with Dr. Brown was too indeterminate and, thus, unenforceable

because it is without cause. Alternatively, McGinity urged that Dr. Brown's fees

were unreasonable.3

Following a hearing on November 5, 2020, the district court granted Dr.

Brown's motion for summary judgment, rendering judgment in favor of Dr. Brown

and against Ms. Chokr, Mr. McGinity, and McGinity Law Firm, LLC, jointly,

severally, and in solido in the amount of $3, 777. 00, plus court costs, interest, and

2 As acknowledged by counsel at oral arguments before this court, Ms. Chokr's medical

malpractice claim has been voluntarily dismissed. Mr. McGinity also filed a reconventional
demand against Dr. Brown for defamation, which was dismissed without prejudice on motion of

Mr. McGinity.
3
McGinity raised these same issues in a cross motion for summary judgment, which was denied
by the district court. We note that McGinity was granted an appeal from the district court's
denial of its motion for summary judgment, which is the subject of a related appeal also decided
this date, Brown v. McGinity, 2021- 1406 ( La. App. 1 Cir. —/—/ 22) ( unpublished).

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reasonable attorney fees.' The district court signed a judgment in accordance with

its findings on December 30, 2020, certifying the judgment as final for purposes of

appeal pursuant to La. Code Civ. P. art. 1915. Ms. Chokr and McGinity each filed

a timely motion for new trial, which were both denied by the district court. This

appeal by McGinity followed, wherein the following assignments of error were

raised:

1. The District Court erred in granting appellee/plaintiff Dr.
Brown's motion for summary judgment because the documents upon
which Dr. Brown relied, including his Predetermination Estimate of
Costs for Treating TMJ Dysfunction— setting for a range of cost
estimate for six to eighteen months of Phase I TMJ treatment— was
too indeterminate to create an enforceable contract with McGinity or
to require McGinity to pay Dr. Brown whatever he decided to charge
Zara Chokr for each of her six visits over Zara' s two, not six to
eighteen, months of orthodontic treatment.

2. The District Court erred in granting appellee/ plaintiff Dr.
Brown's motion for summary judgment based upon the Court' s
observation that the balance Dr. Brown sought to recover by summary
judgment—$ 3, 777. 00 out of a bill totaling $ 5, 694. 00— fell " very
much within the estimate of range of services" for which McGinity
agreed to guarantee payment. Dr. Brown' s claimed $ 3, 777. 00 balance
does not evidence the fee Dr. Brown invoiced or claimed was
reasonable, that is, what was customary in the community for similar
treatments. ... No evidence was presented on what fees were
customarily charged for the orthodontic services Dr. Brown provided
Zara Chokr during her two months of treatment by Dr. Brown in only
six appointments.

3. The District Court erred granting Dr. Brown summary
judgment, awarding Dr. Brown the fee he claimed due while at the
same time noting in the Court' s Reasons for Judgment that " there exist
genuine issues of material fact as to whether or not the charges of the
dentist involved are reasonable."

SUMMARY JUDGMENT

After an opportunity for adequate discovery, a motion for summary

judgment shall be granted if the motion, memorandum, and supporting documents

show that there is no genuine issue as to material fact and that the mover is entitled

to judgment as a matter of law. La. Code Civ. P. art. 966( A)( 3). In reviewing a

We note that because Ms. Chokr has not appealed the summary judgment rendered in favor of
Dr. Brown, the December 30, 2020 judgment is final as it pertains to Ms. Chokr.

101

trial court's ruling on a motion for summary judgment, appellate courts review

evidence de novo using the same criteria that govern the trial court's determination

of whether summary judgment is appropriate. Georgia- Pacific Consumer

Operations, LLC v. City of Baton Rouge, 2017- 1553 ( La. App. 1 Cir. 7/ 18/ 18),

255 So. 3d 16, 22, writ denied, 2018- 1397 ( La. 12/ 3/ 18), 257 So. 3d 194.

The Code of Civil Procedure places the initial burden of proof on the party

filing the motion for summary judgment, here Dr. Brown. See La. Code Civ. P.

art. 966( D)( 1). Once the motion for summary judgment has been made and

properly supported,5 the burden shifts to the non- moving party to produce factual

support, through the use of proper documentary evidence attached to its opposition,

which establishes the existence of a genuine issue of material fact or that the mover

is not entitled to judgment as a matter of law. La. Code Civ. P. art. 966( D)( 1). If

the non-moving party fails to produce sufficient factual support in its opposition

that proves the existence of a genuine issue of material fact, Article 966( D)( 1)

mandates the granting of the motion for summary judgment. See Babin v. Winn-

Dixie Louisiana, Inc., 2000- 0078 ( La. 6/ 30/ 00), 764 So. 2d 37, 40 ( per curiam);

Jenkins v. Hernandez, 2019- 0874 ( La. App. 1 Cir. 6/ 3/ 20), 305 So. 3d 365, 371,

writ denied, 2020- 00835 ( La. 10/ 20/ 20), 303 So. 3d 315.

In ruling on a motion for summary judgment, the trial court's role is not to

evaluate the weight of the evidence or to determine the truth of the matter, but

instead to determine whether there is a genuine issue of triable fact. Janney v.

Pearce, 2009- 2103 ( La. App. 1 Cir. 5/ 7/ 10), 40 So. 3d 285, 289, writ denied, 2010-

1356 ( La. 9/ 24/ 10), 45 So. 3d 1078. Because it is the applicable substantive law

5
Generally, if the moving party will not bear the burden of proof at trial on the issue that is
before the court on the motion for summary judgment, the mover must only point out to the court
the absence of factual support for one or more elements essential to the adverse party's claim,
action, or defense. La. Code Civ. P. art. 966( D)( 1); see also La. Code Civ. P. art. 966,

Comments - 2015, Comment 0). Here, however, Dr. Brown bears the burden of proof at trial on
his suit on open account.

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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. Georgia- Pacific

Consumer Operations, LLC, 255 So. 3d at 22.

Louisiana Revised Statutes 9: 2781( D) defines an open account as " 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." An open account necessarily

involves an underlying agreement between the parties on which the debt is based.

Advanced Leveling & Concrete Solutions v. Lathan Company, Inc., 2020- 0040

La. App. 1 Cir. 12/ 10/ 20), 316 So. 3d 509, 513. If a debtor " fails to pay an open

account within thirty days after the claimant sends written demand therefor

correctly setting forth the amount owed," the debtor " shall be liable to the claimant

for reasonable attorney fees ... when judgment on the claim is rendered in favor of

the claimant." La. R. S. 9: 2781( A).

In an action on an open account, a plaintiff bears the burden of proving his

demand by a preponderance of the evidence. Action Oilfield Services, Inc. v.

Energy Management Company, 2018- 1146 ( La. App. 1 Cir. 4/ 17/ 19), 276 So. 3d

538, 542. The plaintiff must first prove the account by showing that the record of

the account was kept in the course of business and by introducing supporting

testimony regarding its accuracy. Once the plaintiff has established a prima facie

case, the burden shifts to the debtor to prove the inaccuracy of the account or to

prove that the debtor is entitled to certain credits. Louisiana Eggs, Inc. v. Gunter

Farms, Inc., 2001- 0932 ( La. App. 1 Cir. 4/ 2/ 03), 844 So. 2d 400, 402. The amount

due on an account is a question of fact that may not be disturbed absent manifest

error. Deutsch, Kerrigan & Stiles v. Fagan, 95- 0811 ( La. App. 1 Cir. 12/ 15/ 95),

665 So. 2d 1316, 1320, writ denied, 96- 0194 ( La. 3/ 15/ 96), 669 So. 2d 418.

E

The requirements for a valid contract are: ( 1) capacity; ( 2) consent; ( 3) a

lawful cause; and ( 4) a valid object. See La. Civ. Code arts. 1918, 1927, 1966,

1971; Hoskins v. State Through Division of Administration, Office of

Community Development, 2018- 1089 ( La. App. 1 Cir. 2/ 25/ 19), 273 So. 3d 323,

328. According to the Civil Code, " The quantity of a contractual object may be

undetermined, provided it is determinable." La. Civ. Code art. 1973.

Generally, legal agreements have the effect of law upon the parties, and, as

they bind themselves, they shall be held to a full performance of the obligations

flowing therefrom. See La. Civ. Code art. 1983; Waterworks District No. 1 of

DeSoto Parish v. Louisiana Department of Public Safety and Corrections,

2016- 0744 ( La. App. 1 Cir. 2/ 17/ 17), 214 So. 3d 1, 5, writ denied, 2017- 0470 ( La.

5/ 12/ 17), 219 So. 3d 1103. Interpretation of a contract is the determination of the

common intent of the parties. La. Civ. Code art. 2045. Thus, a contract between

the parties is the law between them, and the courts are obligated to give legal effect

to such contracts according to the true intent of the parties. Hampton v.

Hampton, Inc., 97- 1779 ( La. App. 1 Cir. 6/ 29/ 98), 713 So. 2d 1185, 1189.

Moreover, the parties are free to contract for any object that is lawful. La. Civ.

Code art. 1971. " Freedom of contract" signifies that parties to an agreement have

the right and power to fashion their own bargains. Louisiana Smoked Products,

Inc. v. Savoie' s Sausage and Food Products, Inc., 96- 1716 ( La. 7/ l/ 97), 696

So. 2d 1373, 1380; James Const. Group, L.L.C. v. State ex rel. Dept. of Transp.

and Development, 2007- 0225 ( La. App. 1 Cir. 11/ 2/ 07), 977 So.2d 989, 998.

In support of his motion for summary judgment, Dr. Brown introduced his

affidavit with several exhibits attached thereto to show that the outstanding balance

connected with his treatment of Zara constituted an open account within the

meaning of La. R.S. 9: 2781. Dr. Brown submitted all of the documents signed by

McGinity and Ms. Chokr, clearly evidencing their intent to guarantee payment of

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Dr. Brown's fees associated with his treatment of Zara. Dr. Brown introduced

copies of the ledger for Zara's account, which detailed all charges and payments to

Zara's account during the time he treated her, as well as dates of each transaction.

As further support for each charge on the account, Dr. Brown offered his

2014 Schedule of Fees, as well as copies of claim forms for each office visit. The

office visit claim forms provided a breakdown of exactly what the charges were for

each day Zara was treated.' Dr. Brown also submitted copies of the monthly

statements that were sent to McGinity regarding Zara's account, as well as the

demand letters that he sent to McGinity and Ms. Chokr on August 4, 2016, and

August 24, 2016, respectively.

Finally, Dr. Brown offered a copy of his April 4, 2016, expert report, and the

affidavits of two of his orthodontist assistants. Both of Dr. Brown' s orthodontist

assistants attested that they had spoken with Mr. McGinity multiple times after the

estimate was faxed to him and that they answered any questions Mr. McGinity had

regarding Dr. Brown's payment policy. They both added that at no time did either

Mr. McGinity or Ms. Chokr voice any objection to Dr. Brown's fees or to his

treatment of Zara.

In opposition to Dr. Brown's motion for summary judgment, McGinity

submitted the following exhibits: ( 1) Dr. Brown' s medical records concerning his

treatment of Zara, which, in addition to documents already introduced by Dr.

Brown, included handwritten office notes from the days he treated Zara; ( 2)

excerpts of Dr. Brown' s deposition; ( 3) Dr. Brown's answers to some discovery

requests, which included a detailed account of the services he provided to Zara at

each office visit; ( 4) the affidavit of Justin Ramsey, D.D. S., who opined that Dr.

Brown deviated from the standard of care in his treatment of Zara by failing to

Dr. Brown indicated that the claim forms included diagnostic codes for each visit, which are
used for filing with insurance companies. He added that these forms are generated for every
patient, regardless of their insurance status.

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present the fees in a transparent and understandable way, failing to discuss/ inform

all possible treatment options, and failing to obtain the proper " informed" consent;

5) the affidavit of Ms. Chokr, wherein she attested that Dr. Brown had deceived

her and Zara regarding the medical treatment available for Zara's TMJ injury; and

6) excerpts of Dr. Larry McMillen's deposition.7

After de novo review, we find that Dr. Brown satisfied his initial burden on

the motion for summary judgment. He offered prima facie evidence of the amount

due and owing on the account, $ 3, 777. 00, in connection with his treatment of Zara.

According to the record, Dr. Brown treated Zara over the course of six office visits.

Zara's treatment began with a lengthy office visit on March 21, 2016, for a

complete diagnostic records examination," for which Zara's account was billed

3, 359. 00. As noted by the district court, Dr. Brown' s estimate for the diagnostic

testing and the amount actually charged to Zara's account were identical. Also

included in Zara's treatment plan was an orthotic splint that was designed to help

with the TMJ injury, for which Zara's account was billed $ 1, 614. 00. These two

charges account for $ 4, 973. 00 of the total $ 5, 694. 00 that Dr. Brown charged for

his treatment of Zara.

The remaining amount, $ 721. 00, represents charges that accumulated over

the office visits that are detailed on the claim forms submitted into evidence by Dr.

Brown.' The record is clear that the only payments made to Dr. Brown on Zara's

7
According to the record, Dr. McMillen was retained by Dr. Brown in connection with the
medical malpractice case that had been filed against him.

8 The record reflects a total of five visits that account for the $ 721. 00 in charges on Zara's
account. On March 30, 2016, there is a charge of $214.00 for "Anodyne, Infrared Therapy" and
Neuromuscular, Re- education ( MFT)." Following a " Limited" office visit on April 4, 2016,
Zara's account was charged $ 88. 00. On April 11, 2016, Zara's account was charged $ 243. 00 for
an " Extended" office visit that included " Range of Motion." Finally, on both April 28, 2016, and
May 17, 2016, Zara had an " Orthotic Check -Up" for which her account was charged $ 88. 00 per
visit.

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account were the initial down payment of $1, 680. 00 and one monthly payment of

237. 00, leaving a balance due of $3, 777. 00.9

Dr. Brown also submitted copies of the estimate, payment agreement, and

lien agreement that were signed by the parties. These documents clearly provide

the terms and conditions associated with his treatment of Zara, including the

parties who would bear responsibilityfor payment to Dr. Brown for his services,

i.e., McGinity and Ms. Chokr. The documents further provided that prior to the

distribution of any settlement proceeds, McGinity would confirm, in writing, that

Dr. Brown's charges had been paid in full.

Thus, the burden of proof on the motion for summary judgment then shifted

to McGinity. McGinity argued that the estimate, payment agreement, and lien

agreement were unclear and ambiguous. McGinity further alleged that any

obligation that may arise from these documents was too indeterminate to satisfy

Article 1973. Thus, McGinity maintained, the obligation was unenforceable

because it was without cause. Alternatively, McGinity claimed that even if a valid

contract is found to have existed between the parties, the fees charged by Dr.

Brown were not reasonable.

The cases relied on by McGinity in support of the argument that the

agreement with Dr. Brown was too indeterminate to be enforceable are all easily

distinguished from the case before us now. In Louisiana Television

Broadcasting, L.L.C. v. Jay Inzenga & Jay' S Furniture Home Store, L.L.C.,

2019- 0430 ( La. App. 1 Cir. 11115119), 2019 WL 6045223 ( unpublished), plaintiff

9 We note that Dr. Brown's ledger for Zara's account also reflects a charge and payment in the
amount of $550. 00 dated March 31, 2016, for a " Diagnostic Report." However, this does not

appear to be a payment towards the balance due and owing for the services rendered by Dr.
Brown. The $ 550. 00 charge does not appear on any of the aforementioned claim forms

submitted into evidence by Dr. Brown, which provided a breakdown of the charges for each day
Zara was treated. Thus, although not clear from the record, it appears that the $ 550. 00 payment

was for the April 4, 2016 expert report that was prepared by Dr. Brown at McGinity' s request,
not to be confused with the March 21, 2016 " diagnostic" testing and records appointment, for
which Zara's account was billed $3, 359. 00.

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filed suit seeking to enforce an agreement to pay allegedly contained in several text
messages sent by defendant to plaintiff. On appeal, this court concluded that

although the parties may have understood that an outstanding balance existed, the
offer to " give [ plaintiff]
something toward the old bill;" to " give [ plaintiff]

something in the morning that we can live with in good faith;" or to " send

plaintiff) something," each individually, and all collectively, failed to establish the

amount of defendant's outstanding advertising balance. As such, there was an

undeterminable sum, and any alleged agreement was without cause. Louisiana

Television Broadcasting, L.L.C., 2019 WL 6045223 at * 7.

In Wegmann v. Tramontin, 2015- 0561 ( La. App. 4 Cir. 1/ 13/ 16), 186

So. 3d 236, writ denied, 2016- 0276 ( La. 4/ 4/ 16), 190 So. 3d 1209, the petition

alleged that Mr. Tramontin agreed to pay Ms. Wegmann an amount within the

range of $ 3, 000, 000. 00 to $ 5, 000, 000. 00 and that residual amounts after " the first

portion of the $ 3, 000, 000. 00" was tendered upon the sale of Ms. Wegmann' s

house, would be payable on an " as needed basis." Wegmann, 186 So. 3d at 238.

The court found there was no way to determine where in this $ 3, 000, 000. 00 to

5, 000,000. 00 range the payments would fall, nor was it clear what constituted an

as needed basis." Thus, the court concluded the alleged contract was for an

undeterminable sum and therefore unenforceable. Wegmann, 186 So. 3d at 240.

In TAC Amusement Co. v. Henry, 238 So.2d 398 ( La. App. 4 Cir. 1970),

the plaintiff agreed to " install, operate and maintain on said premises one or more

coin operated music devices, and/ or one or more legal coin operated amusement

devices with the number and type of such being within your ( plaintiffs) sole

discretion and at your option." TAC Amusement Co., 238 So. 2d at 399. The

court held that " both the quality and the quantity of the object of plaintiffs

obligation was ... too indeterminate to meet the requirement of [La. Civ. Code art.]

13

1886 [( 1870) now Article 1973], and therefore defendant' s obligation was

unenforceable because without cause." TAC Amusement Co., 238 So. 2d at 400.

With regard to McGinity' s argument that Dr. Brown failed to prove that his

fees were reasonable, we note that in addition to Dr. Brown's testimony that all of
the charges on Zara's account were reasonable and consistent with what he had

been charging for TMJ treatment since 2014, Dr. Brown submitted his 2014

Schedule of Fees showing that all of the fees charged to Zara's account were

consistent with the amounts set forth therein. McGinity failed to submit any

evidence to contravene the reasonableness of Dr. Brown' s fees. McGinity relies

heavily on the deposition testimony of Dr. McMillen to support its argument that

Dr. Brown' s fees were unreasonable. However, we note that when asked his

opinion on whether Dr. Brown's fees charged to Zara were reasonable for the

treatment he rendered and the results he obtained, Dr. McMillen replied, " Yeah, I

wouldn't know. I just know that it was documented exactly what he charged for."

Following our exhaustive review of the record before us, we conclude that

McGinity failed to come forward with any evidence establishing that there is a

genuine issue of material fact. As previously noted, in the instant case, both the

object of the contract and the amount due and owing to Dr. Brown on Zara's

account is easily determined. Both Mr. McGinity and Ms. Chokr signed

documents, including the payment agreement and the lien agreement, indicating

their understanding that they were responsible for the charges associated with Dr.

Brown' s treatment of Zara for TMJ. Dr. Brown submitted detailed records

regarding said treatment, including the diagnostic codes for each visit. Dr. Brown

also introduced, among other things, his rate sheet, the ledger for Zara's account,

and the monthly statements and demand letters that were mailed to McGinity. The

record clearly establishes the amount due and owing on the account, $ 3, 777. 00.

14

i

Accordingly, we find no error in the district court's ruling granting summary

judgment in favor of Dr. Brown.

DECREE

For the above and foregoing reasons, we affirm the district court's December

30, 2020 judgment granting summary judgment in favor of Donald T. Brown, DDS

and against Nisrine Chokr, Douglas D. McGinity, and McGinity Law Firm, LLC,

jointly, severally, and in solido in the amount of $ 3, 777. 00, plus court costs,

interest, and reasonable attorney fees. We assess all costs associated with this

appeal against appellants, Douglas D. McGinity, and McGinity Law Firm, LLC.

AFFIRMED.

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