This is a suit for collection of unpaid legal fees. After trial, the trial court rendered judgment in favor of the plaintiff and against each of the two defendants. We affirm.
The plaintiff is the law firm of Fawer, Brian, Hardy & Zatkis ("the law firm") and the defendants, two of its former clients, are Dr. Randolph Howes and Howes Broadcasting Corporation. Howes Broadcasting is, apparently, owned wholly or partially by defendant Dr. Howes. The law firm represented Dr. Howes with regard to six matters (two of them closely related) and represented Howes Broadcasting with regard to two matters. For simplicity, and because Dr. Howes appears to have acted on behalf of the Howes Broadcasting in that corporation's dealings with the law firm, we will refer to the defendants simply as "Dr. Howes".
The law firm opened a separate file for each of the eight matters for which services were performed. The law firm sent a billing statement to Dr. Howes each month as to each of the eight matters. Dr. Howes paid some of the amounts billed. However, the law firm alleges that Dr. Howes did not pay all of the amounts for which he was billed by the law firm. Dr. Howes admits that he did not make full payment. However, Dr. Howes makes three arguments on appeal why he should not have been cast in judgment for the outstanding amounts billed. First, he argues that the trial court erred in admitting into evidence the law firm's monthly billing statements because they were not sufficiently "trustworthy" to be admissible under the business record exception to the hearsay rule. Second, he argues that even if the monthly billing statements were properly admitted, the evidence was insufficient to prove the law firm's claim. Third, he argues that the trial court erred in rejecting his contention that the law firm committed malpractice in connection with one of the matters.
As to the first issue, we find that the trial court did not err in finding the monthly billing statements to be admissible. Article 803 of the Code of Evidence provides, in pertinent part:
La.Code Evid. art. 803(6) (in part) (emphasis added). "The custodian or other witness who testifies to the foundational requirements, however, need not have personal knowledge of the fact recorded." La.Code Evid. art. 803, comment (e) to exception (6) (in part). See Cole Oil and Tire Co. v. Davis, 567 So.2d 122, 128-29 (La.App. 2d Cir.1990) (detailed analysis of operation of Article 803(6) in the context of suit for unpaid invoices).
There was extensive testimony by the law firm as to how the monthly billing statements were compiled and reviewed for accuracy. First, Mr. Ashton Hardy, who was one of the law firm's partners, and the partner with overall responsibility for the law firm's professional relationship with Dr. Howes, testified:
The exhibits that are attached to the plaintiff's petition are an accumulation of each and every one of the review statements and each and every one—final review statements—and each and every one of the final bills. These were made from the accounting copies that were kept as a permanent office record of the firm. Those copies were personally reviewed by me to be attached as the exhibits to the lawsuit which was personally reviewed by me and approved with the exhibits attached. I am thoroughly conversant and familiar with each and every document that is attached as a exhibit to the plaintiff's lawsuit and can attest to the fact that they were the ordinary business records of the law firm and that they were attached as exhibits to document billing.
No, this—see if I can explain the billing system. Each attorney writes an individual time ticket. Those are delivered daily to a computer processing person who inputs them into the computer. At the end of a month a review statement is submitted to the lawyer whose client is being billed. That review statement documents each of the time tickets that went in. That is then reviewed by the billing attorney, the attorney responsible for the client. That review statement will also tell us if a payment was made on the account during that month. When a bill is generated the bill will be an exact—basically an exact duplicate with some of the detailed internal information removed that goes to the client. The bill that goes to the client will detail precisely the amount of the payment and the credit and the reduction in the bill. So for each of those accounts as you go through them, if you return through them month by month you will see a reference to the payment and the exact date that the payment was received in the office.
Ms. Lynn Wasserman, another of the law firm's attorneys who worked on the representation of Dr. Howes, testified as follows:
Mr. Lanny Zatkis, another of the law firm's attorneys who worked on the representation of Dr. Howes, testified as follows:
Michael Mayhall, another of the law firm's attorneys who worked on the representation of Dr. Howes, testified as follows:
Dr. Howes concedes that Mr. Ashton Hardy, the first witness quoted above, is a "qualified" witness within the meaning of La.Code Evid. art. 803(6) but argues that the billing statements are not "trustworthy" within the meaning of the La.Code Evid. art. 803(6). However, not only Mr. Hardy's testimony, but also the testimony of several other attorneys of the law firm, quoted above, gave the trial court ample grounds to consider the billing statements "trustworthy" within the meaning of La.Code Evid. art. 803(6). Under the procedure described by the above quoted witnesses, the billing statements reflect the work done on each file each month and the charges for that work for each file each month as well as credits for payments received and the amount of any outstanding balances due as to each file. The billing statements themselves, which are plaintiff's exhibit 1 in globo, on their face appear to be exactly as they should in light of the above-quoted witnesses' testimony. Furthermore, no irregularity as to the time and task of record keeping or the compilation of the billing statements was evidenced either on direct or cross examination. We cannot say that the trial court erred in admitting the billing statements into evidence.
Dr. Howes' second argument is that, even if admissible, the billing statements are not sufficient to prove that the legal services were rendered or to establish the amounts owed. Of course, just because particular evidence is admissible does not mean that it will be persuasive to the finder of fact or that it is sufficient to support some particular factual finding. But, in the present case it is obvious that the trial court did find the billing statements persuasive. The issues of the work done and the amounts owed are ones of fact and we may not set aside the trial court's factual determinations unless they are "clearly wrong" or "manifestly erroneous." Stobart v. State, Through Dept. of Transportation, 617 So.2d 880 (La.1993). We do not believe the trial court committed "manifest error" or was "clearly wrong" in view of the record below. There was testimony by the law firm's attorneys who worked on the representation of Dr. Howes as to the work they did, how that work was billed and to the effect that the work done was authorized by Dr. Howes. Obviously, the trial court found that testimony of the law firm's attorneys to be credible and, in light of the record as a whole, the trial court's credibility determination was perfectly reasonable. We have examined the billing statements and note that they give reasonably specific descriptions of the work done on each file each month and the specific dates on which specific work was done. It was perfectly reasonable for the trial court to rely on those billing statements. Moreover, with the exception of Dr. Howe's specific complaints about one matter, which is discussed below in connection with Dr. Howes' third argument, no evidence was offered to rebut either the testimony of the law firm's lawyers or the "billing" statements. In sum, the trial court's factual determinations
Finally, we note that a claim for attorneys' fees is subject to judicial review to insure that no "clearly excessive" attorney's fee is awarded. Drury v. Fawer, 590 So.2d 808-811 (La.App. 4th Cir.1991), writ denied, 592 So.2d 1304 (La.1992); and Gibson v. Burns, 505 So.2d 66, 69 (La.App. 4th Cir. 1987).
Gibson v. Burns, 505 So.2d at 69. Dr. Howes did not offer any expert testimony as to whether the attorneys' fees claimed by the law firm are "clearly excessive" and nothing in the record suggests that the claimed attorneys' fees are "clearly excessive" within the meaning of our Gibson v. Burns decision. The trial court evidently concluded, in light of the testimony of the law firm's attorneys, that the attorneys' fees claimed by the law firm were not "clearly excessive" and that conclusion of the trial court was reasonable in light of the record as a whole.
Dr. Howes' third argument is that the law firm committed malpractice as to one of the eight matters and that this damaged him and entitles him to a set-off against the amount he owes the law firm. At the outset of our own discussion of this argument, we note that in this case the issue of alleged malpractice is one of fact, subject to the "clearly wrong" or "manifest error" standard of review under the Supreme Court's Stobart decision. We also note that the law firm's attorneys testified with respect to this issue and vigorously defended their work and that Dr. Howes presented no expert testimony, or any testimony at all except his own, as to this issue. Instead, Dr. Howes relies upon the argument that in a case of "obvious malpractice" no expert testimony is necessary. However, as will be seen from the immediately following discussion, the alleged malpractice in this case does not involve any "obvious" issues.
Dr. Howes applied for and received a patent on a medical device described as the "Howes Venous Catheter Device" while he was married to Janice Kinchen Howes. Dr. Howes and Mrs. Howes later divorced. The patent became an object of contention and there was litigation as to whether the patent was community property or Dr. Howes' separate property. In particular, there was an issue of whether Dr. Howes engaged in a sham "sale" to try to make the patent separate property. Dr. Howes lost and the patent was determined to be community property. Howes v. Howes, 436 So.2d 689 (La.App. 4th Cir.), writ denied, 441 So.2d 216 (La. 1983).
Dr. Howes attempted to relitigate the community property status of the patent at a later time. His arguments in the second round of litigation apparently included one that the patented device was developed while he and Mrs. Howes were domiciled in a noncommunity property state, and one that the patent had been re-issued after the termination of his community property regime with Mrs. Howes. These arguments were held to be barred by res judicata. Howes v. Howes, 518 So.2d 1147 (La.App. 4th Cir. 1987), writ denied 523 So.2d 232 (La.1988). The law firm did not represent Dr. Howes in the two above described rounds of litigation between Mr. and Mrs. Howes.
The law firm became involved in Dr. Howes' dispute with Mrs. Howes over the patent in a attempt to have the "patent re-issue" argument heard in federal court—i.e.,
The law firm filed a complaint in federal court on behalf of Dr. Howes and against his ex-wife. The complaint stated, in pertinent part:
It is apparent that the thrust of this complaint is that it is the re-issue patent, which would post-date the termination of the community property regime, and not the original patent (which was community property), which is of practical benefit and economic worth. In the face of the apparent legal connection between the original patent and the re-issued patent, and in the face of the obvious fact that the original patent and re-issued patent both relate to the same catheter device, the complaint sought to have the determination of whether the re-issue patent was community or separate property made independently of the original patent. In short, in order to have the re-issue patent declared separate property, the complaint sought to break the link between the re-issue patent and the original patent. The theory adopted in the attempt to break the link was that the re-issue patent was valuable and that the original patent was not.
At the time the law firm filed the complaint, Dr. Howes had a patent infringement suit pending in Pennsylvania. Apparently, this Pennsylvania suit was for the opposing party's infringement of the original patent. In any event, Dr. Howes' patent litigation counsel, Fish and Neave, became concerned that the allegations of the complaint filed by the law firm would prejudice their prosecution of Dr. Howes' patent infringement suit in Pennsylvania. In particular, the complaint's characterization of the original patent as "worthless" caused serious concern.
Thus, Dr. Howe directed the law firm to dismiss the complaint and it was dismissed without prejudice. However, according to Dr. Howes, the complaint did become an issue at the trial of his patent infringement suit in Pennsylvania. Dr. Howes won that suit, but despite his lack of legal expertise in general or expertise as to patent law in particular, he testified that the damages awarded by the Pennsylvania jury were less than they would have been but for the issue of the complaint filed by the law firm.
The law firm's response to Dr. Howes' criticism of the filing of the complaint is two-fold. First, the law firm argues that Dr. Howes reviewed the complaint and even participated in its preparation and insisted that it be filed despite the law firms advice against doing so. (The law firm argues that Dr. Howes did this because of his intense
Lynn Wasserman testified that the complaint was filed on Dr. Howes' "specific instruction" and based that testimony on discussions among her, the other law firm attorneys, Dr. Howes and Mr. Smith. She sent Dr. Howes a letter with the complaint prior to its filing to document his specific approval. She also testified as to the discussions she had with Dr. Howes' patent attorney, Mr. Smith, during the preparation of the complaint.
Ms. Wasserman's testimony was corroborated by Lanny Latkis, another of the firm's attorneys, who also worked on the attempt to relitigate the "patent re-issue" argument by the filing of the complaint. Mr. Dale Wood, Jr., who was Dr. Howes' accountant at the time, and who attended a meeting between Dr. Howes and the law firm's attorneys at which the complaint was discussed, also corroborated Ms. Wasserman's testimony that Dr. Howes was "adamant" that the complaint be filed despite the advice to the contrary of the law firm's attorneys.
The trial court's acceptance of the law firm's factual position is not "manifest error" or "clearly wrong" under the Supreme Court's Stobart standard and in light of the record. The trial court found the law firm prepared and filed the complaint in accordance with Dr. Howes' instructions and in consultation with Dr. Howes' patent counsel. When Dr. Howes patent litigation counsel, Fish and Neave, became concerned, Dr. Howes changed his mind and directed the law firm to dismiss the complaint. The trial court did not err in rejecting Dr. Howes' claim of malpractice.
For the foregoing reasons, the judgment of the trial court is affirmed.