The Kullman Firm, a Professional Law Corporation v. Integrated Electronic Technologies, Inc.

THE KULLMAN FIRM, A * NO. 2024-CA-0138
PROFESSIONAL LAW
CORPORATION *
COURT OF APPEAL
VERSUS *
FOURTH CIRCUIT
INTEGRATED ELECTRONIC *
TECHNOLOGIES, INC. STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2019-03556, DIVISION “F-14”
Honorable Jennifer M. Medley,
******
Judge Rachael D. Johnson
******
(Court composed of Judge Rosemary Ledet, Judge Tiffany Gautier Chase, Judge
Rachael D. Johnson)

Guy Earl Wall
Jonathan R. Cook
Sara M. Lewis
WALL COOK & LEWIS, L.L.C.
540 Elmwood Park Boulevard
Harahan, LA 70123

COUNSEL FOR PLAINTIFF/APPELLEE

Jesse B. Hearin, III
ATTORNEY AT LAW
155 Robert Street, Suite 238
Slidell, LA 70458

Jack Edward Morris
JACK E. MORRIS, ATTORNEY AT LAW, LLC
4051 Veterans Memorial Boulevard
Suite 208
Metairie, LA 70002

COUNSEL FOR DEFENDANT/APPELLANT

EXCEPTION OF PRESCRIPTION
OVERRULED; AFFIRMED
September 27, 2024

RDJ
RML
TGC
Appellant, Integrated Electronic Technologies, Inc. (“IET”), seeks review of

the July 6, 2023 district court judgment, rendered in conformity with a jury verdict,

ordering IET to pay the Appellee, the Kullman Firm, APLC (“Kullman”),

$251,239.59, plus interest thereon, reasonable attorneys’ fees and costs. IET

additionally seeks review of the district court’s rulings denying IET’s motion for

mistrial and its motion for new trial. Lastly, IET raises an exception of

prescription on appeal. Upon review of the applicable facts and law, we affirm the

district court’s judgment and rulings. IET’s exception of prescription is overruled.

Facts and Procedural History

This appeal involves a dispute between IET, a satellite cable television

installation company, and Kullman over unpaid attorneys’ fees IET owed to

Kullman for its defense of IET in federal court. In 2011, Don Gantt, IET’s founder

and owner, retained Kullman to defend IET in a lawsuit by satellite installation

technicians filed in the United States District Court for the Eastern District of

Louisiana (“Eastern District”). It is undisputed that prior to the drafting of

Kullman’s engagement letter, Mr. Gantt met with Ernest Malone— a Kullman

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shareholder and the Vice-President of the Kullman firm—to discuss the Eastern

District lawsuit, anticipated similar lawsuits against IET, and Kullman’s potential

representation of IET. Kullman’s engagement letter contained a provision that

IET’s individual invoices would become past-due after 60 days. It is also

undisputed that Kullman associate, Ben Banta, advised Mr. Gantt that the amounts

of Kullman’s invoices would vary, and sometimes spike. The Kullman firm

advised Mr. Gantt that defense of collective action lawsuits is labor-intensive and

costly.

Subsequently, a second lawsuit was filed against IET by technicians in the

United States District Court for the Southern District of Alabama, which was later

transferred to the Eastern District (these two lawsuits are collectively referred to as

“the Lawsuits” herein). In the Lawsuits, some of IET’s satellite installation

technicians filed collective actions under the Fair Labor Standards Act (“FLSA”)

against IET and Dish— for which IET was a contractor— alleging both companies

violated the FLSA and owed wages, benefits, and other damages to the technicians

as a result of incorrectly classifying them as independent contractors rather than as

employees.

Kullman represented IET from 2011 to August 16, 2016, when a settlement

was approved by the Eastern District. IET, however, became delinquent in paying

its attorneys’ fees to Kullman numerous times throughout the course of the

representation. Moreover, prior to and following the settlement, IET began

questioning Kullman’s billing practices and the validity of its invoices. Kullman’s

invoices remained unpaid following the issuance of its final invoice to IET.

Kullman initially retained counsel to collect IET’s past due payments, but to

no avail. It later filed against IET on April 2, 2019. Kullman pleads that IET

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retained its firm in 2011, agreeing to pay hourly billing rates on an open account.

It pleads that from October 2011 through February 18, 2015, IET paid Kullman’s

monthly invoices— ranging anywhere from $149.20 to $41,133.23— in full.

However, Kullman alleges that a second February 18, 2015 invoice issued to IET

for $30,840 was only partially paid, leaving a balance of $26,282.69. Kullman

states that IET failed to pay any further invoices, the last of which was issued on

November 9, 2016.

Following a four-day jury trial, a jury found in favor of Kullman; and the

district court rendered a July 6, 2023 judgment in conformity with the jury verdict.

The judgment ordered IET to pay $251,239.59, with interest on any accounts that

are 60 days past due, Kullman’s attorneys’ fees, and costs. The district court later

denied IET’s motion for new trial on December 7, 2023, and ordered IET to pay

$159,558.97 in reasonable attorneys’ fees and $34,103.26 in costs. This timely

appeal followed. After this appeal was lodged, IET filed an exception of

prescription in this Court.

Assignments of Error

IET raises four assignments of error, alleging the district court erred in: 1)

awarding attorneys’ fees and costs in favor of Kullman and against IET; 2) denying

IET’s motion for a mistrial due to prejudicial misconduct during voir dire; 3)

granting Kullman’s motion in limine to exclude evidence of the unreasonableness

of attorney fee invoices; and, 4) denying IET’s motion for new trial.

In addition to IET’s assignments of error, as noted above, IET filed an

exception of prescription in this Court. We first address IET’s exception of

prescription.

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Exception of Prescription

On appeal, IET excepts to Kullman’s petition on the grounds of prescription,

pursuant to La. Code of Civ. Proc. art. 2163.1 IET avers that Kullman’s claims for

payments due on an open account prior to April 2, 2016, prescribed because there

is a three-year prescriptive period for open account claims under La. Code of Civ.

Proc. arts. 3494(1) and 3495, which state in pertinent part:

La. Civ. Code art. 3494

The following actions are subject to a liberative
prescription of three years:

(4) An action on an open account

La. Civ. Code art. 3495

This prescription commences to run from the day
payment is exigible. It accrues as to past due payments
even if there is a continuation of labor, supplies, or other
services.

IET argues that Kullman’s claims for payment based on unpaid invoices

issued between February 18, 2015, and April 2, 2016, became exigible after

nonpayment and, therefore, prescribed within three-years of the respective invoice

dates. There were 13 invoices issued during this time period, including the

1 La. Code of Civ. Proc. art. 2163 provides:

A. The appellate court may consider a peremptory
exception filed for the first time in that court if the
exception is pleaded prior to a submission of the case
for a decision and if proof of the ground of the
exception appears of record.

B. If the ground for the peremptory exception pleaded in
the appellate court is prescription or peremption, the
plaintiff may demand that the case be remanded to the
trial court for trial of the exception.

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aforementioned partially paid February 18, 2015 invoice. IET contends that

“[p]rescription of the balance due on an open account begins to run from the date

of the last credit entry on account.” Bell Fence & Galvanizing Co./Cent. Fence v.

Bond, 41,820, p. 4 (La. App. 2 Cir. 1/24/07), 948 So.2d 353, 355 (citing Ritchie

Grocer Co. v. Dean, 182 La. 518, 162 So. 62 (1935); Frierson Co., Inc. v. Murray,

190 So. 132 (La. App. 2d Cir.1939)). Pursuant to Kullman’s engagement letter,

Kullman reserved the right to charge interest “on any accounts that are 60 days

past due”; and the district court awarded Kullman contractual damages under this

provision. Therefore, according to IET, Kullman’s claims for payment became

exigible within 60 days of the issuance of each invoice. IET contends because it

last made a payment towards Kullman’s second-issued February 18, 2015 bill, the

majority of Kullman’s claims for payment of its invoices prescribed.

Kullman responds that prescription on a client’s legal invoices cannot run

while a lawyer’s representation of the client is ongoing. It contends that IET’s

argument contradicts “Louisiana jurisprudence holding that prescription does not

begin to run on an attorney’s invoice to his client until the representation in the

underlying litigation has ended.” Haas v. Estate of Ledoux, 427 So.2d 12, 13-14

(La. App. 3d Cir. 1983); Garden Hill Land Corp, v. Cambre, 354 So.2d 1064,

1068 (La. App. 4th Cir. 1978); Hargrove, Guyton, Van Hook and Ramey v.

Blanchard, 216 So.2d 127, 130-31 (La. App. 2d Cir. 1969); Mouton, Champagne

& Colomb v. Bourgeois, 208 So.2d 546, 549-50 (La. App. 3d Cir. 1968); Lyons v.

Hall, 90 So.2d 519, 522 (La. App. 2d Cir. 1956). Kullman further contends that if

IET is correct, this would have a “chilling and potentially detrimental effect on

clients.”

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IET counters that Kullman’s reliance upon outdated cases to support its

argument that it could not sue IET while still representing IET is misplaced. It

notes that Kullman’s cited cases were decided before the revision of articles 3494

and 3495 on January 1, 1984. IET maintains that under the current La. Civ. Code

art. 3495, prescription commences to run as to past due payments “even if there is

a continuation of labor, supplies, or other services,” as in the instant matter. Also,

it argues that Kullman had the right to move to withdraw as counsel in the federal

litigation, but it did not. We disagree.

A peremptory exception generally raises a purely legal question. Metairie III

v. Poche' Const., Inc., 10-0353, p. 3 (La. App. 4 Cir. 9/29/10), 49 So.3d 446, 449.

An exception of prescription is designed to stop the prosecution of stale claims.

Prevo v. State ex rel. Dep't of Pub. Safety & Corr. Div. of Prob. & Parole, 15-

0823, p. 4 (La. 11/20/15), 187 So.3d 395, 398 (citation omitted). The exceptor

bears the burden of proof, unless it is evident on the face of the proceedings that

the claim has prescribed, at which point the burden shifts to the plaintiff to show

that the matter has not prescribed. Id.

“Statutes regulating prescription are strictly construed against prescription

and in favor of the obligation sought to be extinguished.” Wells Fargo Fin.

Louisiana, Inc. v. Galloway, 17-0413, p. 9-10 (La. App. 4 Cir. 11/15/17), 231

So.3d 793, 801 (citation omitted). “The applicable prescriptive period is

determined by the character of the action pled in the petition. Id., 17-0413, p. 10,

231 So.3d at 801. As stated above, the applicable prescriptive period is three years

from the date the claim became exigible.

“Exigible” under La. Code Civ. Proc. art. 3494 has been interpreted to mean

“requireable” and “demandable.” See Orsot v. Acadian Ambulance Serv., Inc., 19-

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863, p. 8 (La. App. 3 Cir. 7/15/20), 304 So.3d 487, 493, and Ledoux v. City of

Baton Rouge/Par. of E. Baton Rouge, 99-2061, p. 5 (La. 2/29/00), 755 So.2d 877,

879-80. The prescriptive period on an open account runs from the date of the last

purchase or payment. Touro Infirmary v. Am. Mar. Officer, 09-0696, 09-0314, p.

13 (La. App. 4 Cir. 1/7/10), 34 So.3d 878, 886 (citation omitted). “However, when

the open account arrangement between the parties involves the rendition of

professional services, as in this case, other considerations may influence the date a

debt becomes exigible.” Blanchard v. Cors & Bassett, 12-0939 (La. App. 1 Cir.

4/11/13), 2013 WL 1491270, at *1 (unpublished) (citing Evans-Graves Engineers,

Inc. v. Cunard, 95-1035 (La. App. 1 Cir.12/15/95), 665 So.2d 794, 796; Mid-South

Analytical Labs, Inc. v. Jones, Odom, Spruill & Davis, LLP, 40,089 (La. App. 2

Cir.9/23/05), 912 So.2d 101, 106-08).

This Court has held that the three-year period for seeking recovery of

attorneys’ fees, pursuant to article 3494, commences from the date that services

were rendered. Breeden v. Cella, 02-0972, p. 13 (La.App. 4 Cir. 11/26/02), 832

So.2d 1072, 1080 (citations omitted). This Court further noted that Louisiana

jurisprudence considers additional factors in determining when prescription

commences to run: (i) the purpose of the attorney’s employment, when and if that

purpose was accomplished, and when and if the services were completed; (ii)

whether the services were performed on a contingency fee basis; and (iii) when the

employment was terminated. Id., 02-0972, pp. 13-4, 832 So.2d at 1080 (citing

Succession of Buvens, 373 So.2d 750, 752 (La.App. 3 Cir.1979)). “The latter

factor, however, is ‘[p]erhaps the most important factor.’” Id., 02-0972, pp. 13-4,

832 So.2d at 1080.

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In applying the Breeden factors to the instant matter, we note that Kullman

rendered services for IET from 2011 through August 16, 2016. The purpose of

Kullman’s employment was to defend IET in the Lawsuits, which it accomplished

by settling the Lawsuits resulting in the termination of the litigation in August

2016. The services were not performed on a contingency fee basis; instead, the

parties agreed that Kullman would bill IET monthly at various applicable hourly

rates for the work Kullman’s respective associates and Mr. Malone performed.

Lastly, Kullman’s employment was terminated on August 2016, when the Eastern

District approved the settlement. We find that the application of the Breeden

factors militates towards finding that prescription did not commence to run until

August 2016.

Attorneys are fiduciaries to their clients and their conduct in Louisiana is

bound by the Louisiana Professional Rules of Conduct. The client-attorney

relationship is a unique professional relationship and is distinguishable from those

cited in the cases relied upon by IET, which do not involve attorney-client open

accounts. Under the unique facts presented, we find that Kullman’s claims became

exigible on August 16, 2016, when the Eastern District approved the settlement of

the Lawsuits and Kullman ceased representing IET.2 The instant lawsuit was filed

on April 2, 2019, within three years of August 16, 2016. Therefore, IET’s

exception of prescription is overruled. We now turn to discuss IET’s four

assignments of error.

Error in Awarding Attorneys’ Fees and Costs

2 Furthermore, comment (a) of the 1983 revision comments of La. Civ. Code art. 3495

states that current art. 3495 does not change the law. Thus, if there is no change in the substance
of the law, the pre-1983 cases cited by Kullman are still applicable when determining when
attorneys’ fees become demandable.

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IET contends that had it prevailed on its exception of prescription, a

reduction of the district court’s July 6, 2023 Judgment, awarding attorneys’ fees

and costs, as well as the December 7, 2023 Judgment, assessing those costs, would

be required as those awards would be erroneous and necessitate reversal. IET

avers that no contract authorizes the award of attorneys’ fees in favor of Kullman.

Kullman is not entitled to recovery of attorneys’ fees under the open account

statute, La. Rev. Stat. 9:2781(A), because it failed to correctly set forth the amount

owed in its demands to IET by including the prescribed claims. However, as

discussed above, having denied IET’s exception of prescription, we pretermit this

assignment of error.

Motion in Limine

IET avers that the district court erred in granting Kullman’s pre-trial motion

in limine preventing the jury from considering evidence relating to its bills that IET

had already paid. We do not find that the district court abused its vast discretion.

The May 1, 2023 transcript reflects that Kullman moved to exclude any

evidence regarding IET’s payment of Kullman’s invoices, issued between October

26, 2011 and January 27, 2015, totaling $276,279.01. Kullman alleged the paid

invoices were irrelevant to the underlying matter. IET, however, argued that Mr.

Gantt agreed to paying $5,000 per month, or increments thereof, to Kullman

consistent with the parties’ engagement agreement, including in sums of anywhere

from $10,000 to $70,000. IET further asserts that Mr. Gantt did not sign-off on

Kullman’s invoices and did not approve all of Kullman’s invoices because the

invoices failed to detail the amount of time Kullman spent on each task. Kullman,

IET argues, applied Mr. Gantt’s payments to its invoices as it wished. IET further

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contends that the exclusion of the subject invoices would hinder IET’s

establishment that Kullman charged IET outrageous sums.

Kullman’s response was that IET’s or Mr. Gantt’s internal accountant

applied IET’s payments for Kullman’s invoices to the oldest unpaid invoices, just

as Kullman did. It further argued that the lack of specificity in its initial invoices is

irrelevant because Kullman adjusted the format of its later issued invoices and

revised the earlier issued invoices to accommodate Mr. Gantt’s requests.

The district court granted Kullman’s motion, reasoning that there would be

juror confusion if Kullman’s paid invoices were introduced. Motions in limine are

reviewed by appellate courts using the abuse of discretion standard of review,

which gives district courts “great discretion” in their consideration of the motion.

Noel v. Noel, 15-37, p. 15 (La. App. 3 Cir. 5/27/15), 165 So.3d 401, 413.

Moreover, pursuant to La. Code Evid. art. 402, unless otherwise provided by law,

all relevant evidence is admissible. Relevant evidence is “evidence having any

tendency to make the existence of any fact that is of consequence to the

determination of the action more or less probable than it would be without the

evidence.” La. Code of Evid. art. 401. Additionally, even relevant evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of

undue delay, or waste of time. La. Code Evid. art. 403.

In consideration of the applicable law and the facts presented, we find that

the district court did not abuse its discretion. The introduction of paid invoices in a

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trial for unpaid fees is irrelevant and could reasonably have led to the jury being

confused or misled. This assignment of error is without merit.3

Motion for Mistrial

IET asserts that during voir dire a juror tainted the jurors who were in her

panel—consisting of four jurors and two alternates— who heard her say she knew

Mr. Malone, who she babysat for, and vouched for his trustworthiness.

In the instant matter the district court struck the potential juror, Juror 6, for

cause, after Kullman attempted to rehabilitate her. During voir dire of the second

panel of jurors, Juror 6 stated she knows Kullman’s corporate representative, Mr.

Malone. She used to babysit his children, is friends with his daughter and is his

neighbor. When questioned by Kullman’s counsel as to whether her relationship

with Mr. Malone would impact her ability to be a fair juror, she responded, “I

would tend to think he is an honorable, trustworthy and honest man, because I

know him.” She went on to state that her father was friends with one of Kullman’s

founders. She stated, in response to questioning by Kullman’s counsel, that she

found Mr. Malone trustworthy, and further that she considered that Mr. Malone

kept promises to her as evidenced by his paying her each time she babysat. The

district court struck the prospective juror for cause.

The record reflects that IET did not object at any point during the voir dire;

rather it waited until the next day, after the jury was empaneled, to move for a

3 We note that IET did not proffer the excluded invoices until the hearing was held on its

motion for new trial.

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mistrial. Counsel for IET asserted that IET was unable to get a fair trial as a result

of the stricken juror vouching for Mr. Malone. Counsel asserted that Kullman’s

follow-up questions for Juror 6, led her to make prejudicial statements about Mr.

Malone’s trustworthiness. Counsel for IET asserted that Juror 6 told her fellow

potential jurors that Mr. Malone was a great guy who they should trust. In denying

the motion, the district court noted that Juror 6 was stricken and it did not find that

the jury was tainted. Kullman further asserts that the district court gave a curative

instruction to the jury that information given during voir dire, including comments

from other potential jurors, was not evidence and could not be considered.

A mistrial is a drastic remedy that should solely be granted when an “error

results in substantial prejudice sufficient to deprive a party of any reasonable

expectation of a fair trial.” Gotch v. Scooby’s ASAP Towing, LLC, 19-0030, p. 5

(La. 6/26/19), 285 So.3d 459, 463. Pursuant to La. Code Civ. Proc. art. 1631,

district courts on their own motion, or on the motion of any party, following a

hearing, have vast discretion in determining whether to grant a mistrial, since

mistrials are not a matter of right. Therefore, appellate courts may not disturb a

district court’s denial of a motion for mistrial absent a showing of an abuse of that

discretion. Gotch, 19-0030, p. 5, 285 So.3d at 463.

This Court has specified that in civil cases, motions for mistrial should be

granted when, before the trial ends and the judgment is rendered, the trial judge

determines that it is impossible to reach a proper judgment because of some error

or irregularity. Searle v. Travelers Ins. Co., 557 So.2d 321, 323 (La. App. 4th Cir.

1990). So too should a mistrial be granted “when no other remedy would provide

relief to the moving party, including ‘proof of prejudicial misconduct occurring

during a jury trial which cannot be cured by admonition or instructions to the

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jury.’” Chalmette Retail Ctr., L.L.C. v. Lafayette Ins. Co., 09-0217, p. 34-5 (La.

App. 4 Cir. 10/16/09), 21 So.3d 485, 507 (quoting Boutte v. Kelly, 02-2451, p. 26

(La. App. 4 Cir. 9/17/03), 863 So.2d 530, 549). “In the analogous area of mistrials

in criminal law, we have emphasized that a party seeking a mistrial must make a

‘clear showing of prejudice’ and have consistently held ‘a mere possibility of

prejudice is not sufficient.’ ” Gotch, 19-0030, p. 5, 285 So.3d at 463 (quoting State

v. Ducre, 01-2778 (La. 9/13/02), 827 So.2d 1120, 1120).

There is no evidence that the comments from one prospective juror about

Mr. Malone’s trustworthiness in paying for her babysitting services impacted the

jury pool. Moreover, the record reflects the stricken juror never stated to the

potential jurors that they should trust Mr. Malone. Here there has been no clear

showing of prejudice. There was no error or irregularity that prevented a proper

judgment from being reached. Moreover, any prejudicial statements made were

sufficiently cured by the district court’s removal of Juror 6 and its issuance of a

curative instruction.4 This assignment of error is without merit.

Motion for New Trial

In its final assignment of error, IET asserts that the district court erred in

denying IET’s motion for a new trial on peremptory and discretionary grounds,

pursuant to La. Code Civ. Proc. arts. 1972 (1) and 1973, respectively. IET

contends that the jury’s verdict is clearly contrary to the law and evidence because

Kullman’s charges for attorneys’ fees and expenses were unreasonable, it

committed misconduct during voir dire and relevant evidence was excluded. IET

4 We note that IET did not make contemporaneous objection when Juror 6 made

statements about Mr. Malone.

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avers that the cumulative effect of these errors prejudiced the jury and IET at trial,

resulting in a miscarriage of justice.

IET avers that the jury’s verdict is clearly contrary to the law and evidence

and entitles IET to a new trial on peremptory grounds under Article 1972(1)

because the jury’s finding that IET owed Kullman the full amount claimed is

contrary to applicable law requiring that attorneys’ fees must be reasonable and

necessary. The evidence presented at trial established that several of Kullman’s

charges for attorneys’ fees and expenses were unreasonable, unnecessary, and

unauthorized. IET asserts that Kullman’s invoices— dated between October 26,

2011, to July 30, 2012— failed to state the time its lawyers and staff spent on legal

services; consequently, it breached its duty to keep IET “reasonably informed

about the status of the matter,” under La. R. Prof. Cond. 1.4(a)(3). IET argues that

this omission reflects that Kullman failed to carry its burden of proof at trial to

prove that the attorneys’ fees it charged in each of those invoices “were reasonable

and not excessive ....” Dutel v. Succession of Touzet, 94-0978, p. 7 (La. App. 4 Cir.

1/19/95), 649 So.2d 1084, 1087. It further argues the jury was unable to determine

the reasonableness of the fees due to this omission.

IET asserts Ben Miller, a Kullman associate, admitted in this testimony that

the invoices issued during 2015 alone included hourly charges of at least $15,000

for travel time between his Baton Rouge home and Kullman’s office or other

locations in New Orleans, in addition to charges of at least $4,000 in mileage and

other expenses for those trips. IET contends that Mr. Miller’s behavior was

unacceptable because he was charging for driving from his home to Kullman’s

office. Kullman’s own legal expert, labor attorney Thomas McGoey, testified that

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he understood Mr. Gantt having an issue with being charged for the commute from

Baton Rouge to New Orleans for a deposition.

Additionally, IET asserts the district court erred in failing to grant IET a new

trial on discretionary grounds under La. Code. Civ. Proc. art. 1973 because the

district court’s award of the full amount of Kullman’s claim is clearly contrary to

the law and evidence due to the unreasonableness of Kullman’s charges for

attorneys’ fees and expenses. IET avers that upholding the district court’s

judgment would result in a miscarriage of justice, and this, combined with other

prejudicial circumstances surrounding the trial constitute good grounds for

granting a new trial. IET asserts those prejudicial circumstances include Kullman’s

counsel’s prejudicial misconduct during voir dire discussed in support of its second

assignment of error and the district court’s prejudicial exclusion of evidence of the

unreasonableness of Kullman’s paid attorney fee invoices as discussed in support

of its third assignment of error. We disagree.

A new trial shall be granted, upon contradictory motion of any party, “when

the verdict or judgment appears clearly contrary to the law and the evidence.” La.

Code Civ. Proc. art. 1972(1). Moreover, a new trial may be granted on

discretionary grounds, “in any case if there is good ground therefor, except as

otherwise provided by law.” La. Code Civ. Proc. art. 1973. Rulings on a motion

for new trial are reviewed under an abuse of discretion standard of review. Sunset

Harbour, LLC v. Brown, 22-0572, p. 9 (La. App. 4 Cir. 1/9/23), 356 So.3d 1167,

1173 (citation omitted).

First, we pretermit discussion of those arguments IET re-urges from its

second and third assignments of error as those arguments have been found

meritless. Additionally, we note that with regard to the reasonableness of

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Kullmans’ attorneys’ fees and expenses, the jury heard conflicting testimony from

the parties’ witnesses.

Mr. Gantt, for instance, testified that he is IET’s founder and he retained

Kullman to represent IET. He testified that although it was explained to him that

Kullman’s billing would fluctuate and that collective action lawsuits, such as his,

were complicated and labor intensive, he ultimately found Kullman’s billing

deceptive and that he was unfairly being charged or travel expenses. He recounted

Kullman’s monthly invoices increasing to amounts of $30,000 or more, yet he

believed he was only obligated to pay $5,000 monthly. He admitted to being in a

“perpetual state of arrearment.” He further testified that he disputed travel charges

for Kullman’s attorneys traveling between New Orleans to Birmingham and from

New Orleans to Baton Rouge. He stated that he became dissatisfied with Kullman

when he concluded that it was intentionally running up IET’s bill.

However, Mr. Malone and Mr. McGoey, testified as to the reasonableness of

Kullman’s billing. Mr. McGoey’s opinion was based upon his review of the

records of the Lawsuits, including depositions, pleadings, motions, answers, prior

to and after consolidation, and related materials.

Mr. Malone noted that he was aware of IET’s financial constraints, which is

why he limited his billing on IET’s behalf to approximately 30 hours, knowing that

his billable rate was much higher than the associates he assigned to perform the

majority of IET’s defense. He testified that Mr. Gantt had been warned by him that

Kullman’s defense of IET would be expensive due to the labor-intensive nature of

the work.

Mr. McGoey was accepted by the district court as an expert in the fields of

labor and employment law as well as reasonableness and appropriateness of

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attorneys’ fees in such cases. He opined that based on his review of the applicable

factors enumerated in Rule 1.5 of the Louisiana Rules of Professional Conduct, he

determined Kullman’s hourly billing rates to be reasonable and appropriate. He

further testified that IET was being undercharged by Kullman considering what

other local firms customarily charge for similar legal services. He further noted the

travel expenses charged were typical and were a fraction of the bill, totaling $7,000

between February 2015 and the end of the case.

Here, where the jury was presented with conflicting testimony, it determined

that Kullman’s witnesses were more credible. The records reflects that the jury had

a reasonable basis to conclude that Kullman was entitled to collect payment on all

of its past-due invoices. Moreover, at trial Kullman’s invoices issued prior to

January 2015 and their formatting, were not at issue because they had been paid,

and testimony was adduced to trial to demonstrate that Kullman re-formatted its

invoices in response to Mr. Gantt’s initial complaints. Thus, the district court did

not abuse its discretion in concluding that IET was not entitled to a new trial on

peremptory or discretionary grounds.

DECREE

For the foregoing reasons, IET’s exception of prescription is denied. The

July 6, 2023 district court judgment and its rulings denying IET’s motion for

mistrial and motion for new trial, are affirmed.

EXCEPTION OF PRESCRIPTION
OVERRULED; AFFIRMED

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