Gulf Coast Chemical, Inc. v. Ecosphere Technologies, Inc.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-1062

GULF COAST CHEMICAL, LLC

VERSUS

ECOSPHERE TECHNOLOGIES, INC.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 91400
HONORABLE DURWOOD WAYNE CONQUE, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Phyllis M. Keaty,
Judges.

AFFIRMED.
Stanford B. Gauthier, II
Attorney at Law
1405 West Pinhook Rd, Suite 105
Lafayette, LA 70503
(337) 234-0099
COUNSEL FOR PLAINTIFF-APPELLEE:
Gulf Coast Chemical, LLC

Laura Hart Bryan
Crawford Lewis, PLLC
P.O. Box 3656
Baton Rouge, LA 70821-3656
(225) 343-5290
COUNSEL FOR DEFENDANT-APPELLANT:
Ecosphere Technologies, Inc.

PICKETT, Judge.

The defendant, Ecosphere Technologies, Inc., appeals a judgment of the trial

court awarding the plaintiff, Gulf Coast Chemical, LLC, $42,435.00 plus interest

on an open account and attorney fees in the amount of $9,476.38.

STATEMENT OF THE CASE

Pursuant to an agreement reached in August 2008, Gulf Coast performed

certain analyses on water samples for Ecosphere. In general, two types of tests

were performed: a water analysis and an elemental analysis. Gulf Coast also sold

certain chemicals to Ecosphere.

From September to November 2008, Gulf Coast sent invoices to Ecosphere

for the analyses, chemicals, and labor. The five invoices for chemicals and labor

totaled $10,306.45. Ecosphere claimed that the two invoices for the analyses, sent

in early November, were insufficiently descriptive. In January 2009, Gulf Coast

sent credit memos for the two invoices which had billed only for “Miscellaneous.”

It then issued two new invoices: one for 123 water analyses at a unit price of

$150.00 for a total cost of $18,450.00 and one for 369 elemental analyses at a unit

price of $65.00 for a total cost of $23,985.00.

Ecosphere failed to pay any of the amounts due to Gulf Coast. On May 28,

2009, an attorney for Gulf Coast sent a demand letter to Ecosphere seeking

payment for $52,741.45. When Ecosphere did not make payment in response to

the letter, Gulf Coast filed a Petition for Money Due on Open Account on

December 8, 2009. Ecosphere filed an answer that denied the indebtedness to Gulf

Coast.

The matter proceeded to trial on April 6, 2011. At that time, the parties

stipulated that Ecosphere had paid the invoices for the labor and chemicals, and

only two invoices, one for elemental analyses and one for water analyses, remained

an issue to be decided by the court. During the trial, Ecosphere acknowledged that

the invoice for $18,450.00 for water analysis was correct and it owed that amount

to Gulf Coast. Ecosphere argued that the parties had agreed to a lower price for the

elemental analyses performed by Gulf Coast, and introduced evidence, including

the testimony of Michael Donn, Sr., the chief operating officer of Ecosphere, to

support its claim that Gulf Coast agreed to charge between $20.00 and $25.00 for

each sample. The owner of Gulf Coast, Jimmy Lee Fuselier, and the salesman

assigned to Ecosphere’s account, Brad Petrek, testified that only Mr. Fuselier had

authority to set the price and he had set the price at $65.00 per sample for

elemental analysis.

At the end of the trial, the trial court ruled that Gulf Coast had proven its

case and awarded Gulf Coast $42,435.00 plus interest from the date of judicial

demand. The trial court also awarded attorney fees of $9,476.38 pursuant to the

open accounts statute, La.R.S. 9:2781. Ecosphere now appeals.

ASSIGNMENTS OF ERROR

Ecosphere asserts three assignments of error:

1. The district court erred in ruling that plaintiff-appellee Gulf Coast met
its burden of proof required to prevail on its petition for suit on open
account under Louisiana Revised Statute 9:2781.

2. The district court erred in allowing ambiguity on price to be
interpreted against defendant-appellant Ecosphere.

3. The district court erred in ruling that defendant-appellant Ecosphere
agreed to pay $65 per each elemental analysis.

DISCUSSION

Gulf Coast’s suit on open account is based on La.R.S. 9:2781(A), which

states:

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
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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. If the claimant and his
attorney have expressly agreed that the debtor shall be liable for the
claimant's attorney fees in a fixed or determinable amount, the
claimant is entitled to that amount when judgment on the claim is
rendered in favor of the claimant. Receipt of written demand by the
person is not required.

“The amount owing on an open account is a question of fact.” Credit Bureau Serv.

v. Lundberg, 08-1523, p. 4 (La.App. 3 Cir. 5/6/09), 10 So.3d 883, 885. An

appellate court is not to disturb the findings of fact of a trial court unless those

findings are manifestly erroneous or clearly wrong. Rosell v. ESCO, 549 So.2d

840 (La.1989).

In its appeal, Ecosphere complains that the price for each elemental analysis

was not proven by Gulf Coast. Instead of the $65 per elemental analysis charge on

the revised invoices sent in January 2009, Ecosphere argues that it agreed to pay

$20 to $25 for three elemental analyses on each sample of water. Ecosphere

argues that its evidence shows that $65 was the charge for each water sample, not

each elemental analysis. Furthermore, because Gulf Coast failed to properly state

the amount owed in its written demand for payment, Ecosphere argues that the

award for attorney fees should be reversed.

Each party presented evidence in this case to support its position on the price

of the elemental analyses. Ecosphere introduced the testimony of Mr. Donn and

two e-mail communications between Ecosphere employees which indicate their

understanding that Gulf Coast would charge between $20 and $25 dollars for each

elemental analysis. Mr. Petrek and Mr. Fuselier testified for Gulf Coast. Both

men stated that the only person authorized to set the price for the elemental

analyses was Mr. Fuselier. Additionally, a page from the day planner of Mr.

Petrek from the week of his initial meetings with representatives from Ecosphere
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was introduced, which shows a notation that the charge for each elemental analysis

was $60 or $65.

The court also heard testimony from Mr. Fuselier that after his accounts

receivable department sent the revised invoices, he did not hear from Ecosphere

about payment until after the demand letter had been sent and this suit had been

filed. Furthermore, while Ecosphere had paid for the chemicals at the time of the

trial, Ecosphere had not paid for the water analyses even though it did not dispute

the pricing or quantity of those analyses. Although Mr. Donn testified that he met

Mr. Petrek on at least one occasion and discussed pricing, Mr. Petrek denied ever

meeting Mr. Donn.

The trial court clearly made a credibility determination. The supreme court

recently explained this court’s role in applying the manifest error standard in

McGlothlin v. Christus St. Patrick Hospital, 10-2775, p. 16 (La. 7/1/11), 65 So.3d

1218, 1230-31:

Under the manifest error standard, a determination of fact is
entitled to great deference on review. Guillory v. Lee, 09-0075, p. 14
(La.6/29/09), 16 So.3d 1104, 1116; Wainwright v. Fontenot, 00-0492,
p. 6 (La.10/17/00), 774 So.2d 70, 74.

[T]he reviewing court must give great weight to factual
conclusions of the trier of fact; where there is conflict in
the testimony, reasonable evaluations of credibility and
reasonable inferences of fact should not be disturbed
upon review, even though the appellate court may feel
that its own evaluations and inferences are as reasonable.
The reason for this well-settled principle of review is
based not only upon the trial court’s better capacity to
evaluate live witnesses (as compared with the appellate
court's access only to a cold record), but also upon the
proper allocation of trial and appellate functions between
the respective courts.

Guillory, 09-0075 at p. 14, 16 So.3d at 1116-17 (quoting Perkins v.
Entergy Corp., 00-1372 (La.3/23/01), 782 So.2d 606). Because the
discretion vested in the trier of fact is so great, and even vast, an
appellate court should rarely disturb its findings on review. Guillory,
09-0075 at p. 14, 16 So.3d at 1117.
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We find no manifest error in the trial court’s finding that the price and quantity of

the elemental analyses were proven by Gulf Coast. Because we find that Gulf

Coast proved that the amount it sought in the petition and demand letter was

correct, we affirm the award of attorney fees made by the trial court to Gulf Coast.

Ecosphere’s next argument, that the pricing was ambiguous, is not

persuasive. Rather, it is merely a restatement of the issue presented to and decided

by the trial court without any additional legal argument to support the claim.

In its last assignment of error, Ecosphere claims there was mistake in the

billing or outright fraud by Gulf Coast. These allegations were not raised in the

trial of this matter and are not supported by the record. We find no merit in the

assignment of error.

Finally, we note that Gulf Coast, in its brief to this court, has prayed for

additional attorney fees for work done on this appeal. Because Gulf Coast did not

file an appeal or an answer to the appeal seeking a modification of the judgment,

we cannot consider this argument. La.Code Civ.P. art. 2133.

CONCLUSION

The judgment of the trial court is affirmed. Costs of this appeal are assessed

to Ecosphere.

AFFIRMED.

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