Reich, Album & Plunkett, L.L.C. Versus Gaston Mugnier and Coastal Development Group, L.L.C.

REICH, ALBUM & PLUNKETT, L.L.C. NO. 23-CA-559

VERSUS FIFTH CIRCUIT

GASTON MUGNIER AND COASTAL COURT OF APPEAL
DEVELOPMENT GROUP, L.L.C.
STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 708-164, DIVISION "I"
HONORABLE NANCY A. MILLER, JUDGE PRESIDING

November 20, 2024

FREDERICKA HOMBERG WICKER
JUDGE

Panel composed of Judges Fredericka Homberg Wicker,
Stephen J. Windhorst, and Timothy S. Marcel

AWARD OF ATTORNEY FEES IN JUNE 5, 2023 JUDGMENT
REVERSED
FHW
SJW
TSM

COUNSEL FOR PLAINTIFF/APPELLEE,
REICH, ALBUM & PLUNKETT, L.L.C.
Robert S. Reich
John C. Box

COUNSEL FOR DEFENDANT/APPELLANT,
GASTON MUGNIER
Anton Martynenko

WICKER, J.

This appeal arises from a judgment in favor of the plaintiff law firm in a suit

on open account brought against a client to recover unpaid legal fees. After a

bench trial, the trial court awarded the law firm $18,848.25 as the outstanding

balance on the account, plus $20,000.00 in attorney fees for the prosecution and

collection of the balance due, pursuant to La. R.S. 9:2781.

The client appealed the judgment, seeking to have the attorney fee award

reversed because the amount demanded in the law firm’s written demand was not

the correct amount owed, and this discrepancy precludes an attorney fee award

under the statute, which must be strictly construed. The law firm contends the

client did not properly preserve that issue for review or prove the discrepancy he

asserts as a bar to its recovery of attorney fees. By answer to the appeal, the law

firm seeks an award of additional attorney fees for work done on appeal.

Finding merit in the client’s assignment of error, and finding no bar to his

raising the issue for the first time on appeal, we reverse the trial court’s award of

attorney fees and decline to award any additional attorney fees on appeal.1

Factual and Procedural Background

The law firm, Reich, Album & Plunkett, L.L.C. (RAP), brought the suit

against the client, Gaston Mugnier, and his limited liability company, Coastal

Development Group, L.L.C., in 2011, seeking to recover fees for legal services

rendered to both defendants from 2009 to 2011. After protracted litigation

spanning over a decade, the suit proceeded against Mr. Mugnier individually, and a

bench trial was held on the merits of RAP’s claims against him on May 4, 2023.2

1
We have found no support for the plaintiff’s contention that the defendant is precluded from
challenging the attorney fee award on the grounds set forth in his appeal because he did not raise the issue
in the trial court.
2
Certain issues pertaining to discovery sanctions were addressed in a prior appeal. Reich, Album
& Plunkett, L.L.C. v. Mugnier, 14-339 (La. App. 5 Cir. 12/22/21), 334 So.3d 986.

23-CA-559 1

At the trial, RAP introduced copies of the invoices reflecting the work done

by the firm on Mr. Mugnier’s behalf, as well as a separate list with a breakdown of

the dollar amounts contained in each of those invoices and adjustments to some of

those amounts. RAP also introduced copies of invoices reflecting the work done

by the firm in prosecuting the lawsuit and testimony from a lawyer with the firm

who was familiar with that work. All billing records were authenticated by RAP’s

office manager and billing records custodian, Tammy Ellison.

Ms. Ellison testified that the total amount owed to the firm by Mr. Mugnier

was $18,848.25. She stated that he had not made any payments on the account.

RAP did not introduce any evidence of its written demand on Mr. Mugnier

stating the amount owed, which may be made by letter or by citation and service of

a petition, according to La. R.S. 9:2781(A). From RAP’s opening statement, it

appears that RAP was relying on citation and service of the original petition as its

written demand. As mentioned in the prior appeal, an amended petition was filed

in the case. 334 So.3d at 988 n. 1. The amount owed by Mr. Mugnier was stated

as $18,105.90 in the original petition and $18,761.29 in the amended petition.

Mr. Mugnier was represented by counsel at the trial, but he did not appear or

testify.

In written reasons for judgment, the trial court found that RAP met its

burden of proving the existence of an open account and the validity of the amount

due. The court further found that RAP was entitled to reasonable attorney fees for

the prosecution and collection of the claim under La. R.S. 9:2781 but did not

mention the language in the statute that requires the creditor to send written

demand to the debtor correctly stating the amount owed in order to recover

attorney fees.

23-CA-559 2

On June 5, 2023, the court issued a judgment in RAP’s favor for $18,848.25,

with judicial interest from date of judicial demand and all costs, as well as

$20,000.00 in attorney fees.

The Statute

La. R.S. 9:2781 states in part:

A. When any person fails to pay an open account within thirty days
after the claimant sends written demand therefor correctly setting
forth the amount owed, that person shall be liable to the claimant
for reasonable attorney fees for the prosecution and collection of
such claim when judgment on the claim is rendered in favor of the
claimant. Citation and service of a petition shall be deemed written
demand for the purpose of this Section. . . .

B. If the demand is forwarded to the person by first class mail to his
last known address, a copy of the demand shall be introduced as
evidence of written demand on the debtor.

C. If the demand is made by citation and service of a petition, the
person shall be entitled to pay the account without attorney fees by
delivering payment to the claimant or the claimant’s attorney within
ten days after service of the petition in city courts and fifteen days
after service of the petition in all other courts. (Emphasis added.)

The provision for the use of citation and service of the petition as a form of

written demand was added to the statute in 2001. See Wright & Moreno, L.L.C. v.

Clement, 04-1097 (La. App. 3 Cir. 12/8/04), 891 So.2d 704, 706-07. That

provision was in effect when this lawsuit was filed, but it was not in effect when

some of the cases interpreting the statute were decided. Because the term “written

demand” now encompasses demands made either by letter or by citation and

service of a petition, we shall use the term “written demand” in place of the term

“demand letter” in our discussion of the case law.

Judicial Interpretation of the Statute

Attorney fees are generally not recoverable by a successful litigant unless

specifically provided for by contract or by statute. Consequently, statutes

authorizing such recovery are considered penal in nature and are strictly construed.

Frank L. Beier Radio, Inc. v. Black Gold Marine, Inc., 449 So.2d 1014 (La. 1984).

23-CA-559 3

This rule of strict construction applies to La. R.S. 9:2781, which requires “written

demand . . . correctly setting forth the amount owed” as a prerequisite to liability

for attorney fees. Id. at 1015-16. Attorney fees are not recoverable under La. R.S.

9:2781 if the statement of the amount owed in the written demand was not the

correct amount owed. Id. at 1016.

When the amount testified as due at the time of trial differs from the amount

stated to be due in the written demand, the creditor bears the burden of proving that

the amount due, as stated in the written demand, was correct at the time the

demand was made. Texas Industries, Inc. v. Roach, 426 So.2d 315, 317-18 (La.

App. 2 Cir. 1983); Kaye v. Karp, 19-194 (La. App. 5 Cir. 12/30/19), 286 So.3d

1281, 1288-89. A creditor who does not meet this burden may not recover

attorney fees. Id. This is true even if the difference between those two amounts is

relatively small. See, e.g., Kaye v. Karp, supra (difference of $100.03); Roy v.

Gegenheimer, 90-521 (La. App. 5 Cir. 1/16/91), 573 So.2d 555, 556 (difference of

$217.50); and Dutel v. Succession of Touzet, 94-0978 (La. App. 4 Cir. 1/19/95),

649 So.2d 1084, 1086-87 (difference of $550).

Conversely, the creditor may recover attorney fees despite differences in the

amounts stated as due in the written demand and at trial if the amount due as stated

in the written demand was accurate when the statement was made. For example, in

Guidry’s Seafood Distributors, Inc. v. Farmers Seafood Co., Inc., 99-1005 (La.

App. 3 Cir. 12/15/99), 759 So.2d 806, 808, writ denied, 00-0837 (La. 5/12/00), 762

So.2d 15, an attorney fee award was upheld despite a difference of over $40,000.00

between the amount demanded and the amount awarded at trial because the

amount demanded was accurate when the demand was made, and the amount owed

was reduced by subsequent payments.

Analysis

23-CA-559 4

In this case, the only mention of RAP’s written demand at trial was its

attorney’s reference to the citation and service of the original petition on Mr.

Mugnier in RAP’s opening statement. The amount Mr. Mugnier owed, according

to that petition, was $18,105.90, and the amount stated to be due at trial was

$18,848.25. The difference between these amounts is $742.35.

The amount owed by Mr. Mugnier, as stated in the amended petition, was

$18,761.29, which is $86.96 less than the amount stated to be due at trial.

RAP’s exhibit listing the amounts reflected in each of its invoices to Mr.

Mugnier (Exhibit P-2) indicates that the total amount billed to him was $19,686.21,

and that this amount was reduced by $837.96 in adjustments to arrive at the total

due of $18,848.25. Ms. Ellison testified that Mr. Mugnier did not make any

payments on his account, and no other explanation was given for the adjustments.

Although the trial took place many years after Mr. Mugnier incurred the legal fees

in question, there is simply no evidence in the record showing that the amount

stated to be owed by Mr. Mugnier in a written demand by RAP was accurate when

the statement was made. Proof of this by the creditor is a prerequisite to recovery

of attorney fees under La. R.S. 9:2781. Frank L. Beier Radio, 449 So.2d at 1016;

Kaye v. Karp, 286 So3d at 1289. In this case, RAP did not meet its burden.

Conclusion

For the reasons stated, we reverse the trial court’s award of attorney fees in

the amount of $20,000.00 in favor of the plaintiff, Reich, Album & Plunkett,

L.L.C., and against the defendant, Gaston Mugnier, in its judgment of June 5,

2023, and decline to award any additional attorney fees to the plaintiff on appeal.

Costs of the appeal are assessed to the plaintiff.

AWARD OF ATTORNEY FEES IN JUNE 5,
2023 JUDGMENT REVERSED

23-CA-559 5

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
NOVEMBER 20, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-CA-559
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE NANCY A. MILLER (DISTRICT JUDGE)
JOHN C. BOX (APPELLEE)

MAILED
ROBERT S. REICH (APPELLEE) ANTON MARTYNENKO (APPELLANT)
ATTORNEY AT LAW ATTORNEY AT LAW
1206 PARK DRIVE 132 LOUISE DRIVE
SUITE 200 MANDEVILLE, LA 70448
MANDEVILLE, LA 70471