Morris, Lee & Bayle, LLC v. MacQuet

• Decision Date: 23 March 2016
• Docket Number: No. 2014–CA–1080.,2014–CA–1080.
• Parties: MORRIS, LEE AND BAYLE, LLC v. Dominique M. MACQUET.
• Court: Court of Appeal of Louisiana — District of US

192 So.3d 198

MORRIS, LEE AND BAYLE, LLC

v.Dominique M. MACQUET.

No. 2014–CA–1080.

Court of Appeal of Louisiana, Fourth Circuit.

March 23, 2016.

Stanley C. Kottemann, Jr., Stanley C. Kottemann, Jr. & Associates, Kenner, LA, for Plaintiff/Appellant.

David W. Bernberg, The Law Office of David W. Bernberg, L.L.C., New Orleans, LA, for Defendant/Appellee.

(Court composed of Judge MAX N. TOBIAS, JR., Judge MADELEINE M. LANDRIEU, Judge SANDRA CABRINA JENKINS ).

SANDRA CABRINA JENKINS

, Judge.

This appeal arises out of a suit to collect attorneys' fees. Prior to a trial of the matter, Plaintiff and Defendant reached a compromise agreement which was recited on the record in open court. Plaintiff's counsel then prepared and submitted a consent judgment to the trial court without Defendant's signature. The trial court signed the consent judgment noting that Defendant entered his consent to the agreement on the record. Subsequently, Plaintiff filed for a writ of fieri facias (“writ of fifa”), to be issued and executed based on the consent judgment, and filed a petition for garnishment. Defendant filed a motion to set aside the writ of fifa and the garnishment, arguing that he had complied with and satisfied all terms of the compromise agreement and Plaintiff improperly executed upon the consent judgment through the writ of fifa. Following a hearing, the trial court's June 6, 2014 judgment granted Defendant's motion to set aside the writ of fifa and garnishment, denied Plaintiff's exception of prescription, and upheld and enforced the compromise recited on the record in open court. From that judgment, Plaintiff now appeals. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2008, Defendant, Dominique Macquet, retained the legal services of Plaintiff, Morris, Lee, Bayle, L.L.C., to represent him in a divorce proceeding. The parties signed a written contract setting forth Plaintiff's attorney fee structure and the terms and conditions of Defendant's payment for the legal services.¹ On October 6, 2010, Plaintiff filed suit against Defendant for non-payment of attorneys' fees and costs under the terms of the contract. Plaintiff sought judgment against Defendant in the amount of $11,920.00 plus interest from the date of default and additional attorneys' fees of twenty-five percent of the principal and interest.²

On August 21, 2013, the date set for trial of the matter, the parties reached a settlement agreement, or compromise. The terms of the compromise were recited in open court on the record as follows:

THE COURT: All right. I understand that there has been an agreement reached in this case; is that correct?

MR. KOTTEMANN [PLAINTIFF'S ATTORNEY]: Yes, your Honor.

THE COURT: Would you articulate it?

MR. KOTTEMANN: Yes, your Honor, I will. It specifically, let me start off that there are two hard dates here: One, is Monday, August 26, 2013 at 11:00 a.m. A $5,000 check will be written to either—probably to my law firm, Stanley C. Kotteman[n], Jr. and Associates.

* * *

THE COURT: Okay. That's a check for $5,000 ready for 11:00 a.m. on Monday, August 26.

MR. KOTTEMANN: That's right. The remaining $4,000—for a total of $9,000 payment for settlement in full will be due no later than March 1, 2014, the full amount.³

THE COURT: Okay.

MR. KOTTEMANN: If that amount is not due on March 1, 2014, then the original amount as prayed for in the judgment before you Judge will be due, less any credit Mr. Macquet had paid at that time. Okay. We will basically follow a structure payment plan of—starting on October 1, 2013 to be mailed to my law firm of $500. And that will be due the first of each month, up to March 1, 2014 where there will be a balloon payment paid for any amount owed at that time.

THE COURT: Okay. So, the total settlement is for $9,000, correct?

MR. KOTTEMANN: That is correct.

THE COURT: All right. First payment being due Monday, $5,000. Thereafter, beginning October 1, the defendant is to pay $500 a month. No penalties if there is a late—if it's later or—

MR. KOTTEMAN: That is correct.

THE COURT: Okay.

MR. KOTTEMANN: Unless, like I said, just if the $5,000 is not ready on Monday at 11:00, August 26, then the full amount of the judgment would be due. Or if the remaining $4,000 has not been paid by March 1, 2014, less credits, the amount originally prayed for would be due.

THE COURT: Okay. So, the monthly payments—that $500 that he's paying, those payments would be credited toward the $4,000 that's due?

MR. KOTTEMANN: That is correct.

THE COURT: And if by March 1, the $4,000 dollars has not been paid, then you will contact Mr. Bernberg [Defendant's counsel] and give him notice?

MR. KOTTEMANN: Yes, your Honor, probably a week or two before that I will contact him just to notify him what's going on.

THE COURT: Okay. In terms of the balance that's owed and what's due March 1?

MR. KOTTEMANN: But I would send him a copy of the judgment on March 1, that we would be submitting to you within 5 days if we had not received it on March 1.

THE COURT: Okay. And just one other thing. You mentioned that if the payments weren't made as agreed upon, then the amount that's due would be that that was originally prayed for; is that correct?

MR. KOTTEMANN: That's right. If the $5,000 is not paid on Monday, August 26, 2013, or if the remaining $4,000 has not been payed by March 1, 2014, ..., then the original judgment as prayed for less any credits would be submitted to the Court.

* * *

MR. KOTTEMANN: And then of course we would dismiss the lawsuit with prejudice after March 1, 2014, assuming it's been paid.

After the terms were recited on the record, the trial court confirmed each party's consent to the compromise agreement.⁴ At the conclusion of the hearing, Plaintiff's counsel offered to prepare and submit a written judgment signed by the parties.

Later that same day, Plaintiff's counsel prepared, signed, and submitted to Defendant's counsel a “Consent Judgment” which reads, in pertinent part, as follows:

IT IS ORDERED, ADJUDGED, AND AGREED that Dominique M. Macquet in the above captioned matter, shall pay to Morris, Lee & Bayle, LLC, Plaintiff, the full and true sum of $9,000.00, the agreement is as follows:

Dominique M. Macquet agrees to pay $5,000.00 down payment on or before Monday morning 11:00 am, August 26, 2013. The $5,000.00 payment will be received by either Stanley C. Kottemann, Jr. or a representative of his firm. The final $4,000.00 shall be paid in monthly installments of $500.00, first payment due on October 1, 2013, thereafter each additional payment of $500.00 shall be due on the 1st of each and every month until March 3, 2014 when the final payment of $1,500.00 is due in full. The payment shall be made to, Stanley C. Kottemann, Jr. & Associates and delivered to 3800 Florida Avenue, Suite 201, Kenner, Louisiana 70065 on or before the date when such payment is due. In the event that Defendant fails to comply with the terms of the above consent judgment on August 26, 2013 and March 3, 2014, then as stated in the original petition, the amounts stipulated in the original Petition $11,920.00 will be due including attorneys fees, court cost and interest, with credit for any payments made by Dominique M. Macquet.

On August 26, 2013, Defendant's counsel personally and timely delivered the first payment of $5,000.00 to Plaintiff's counsel in fulfillment of the first term of the agreement; however, Defendant's counsel had not signed the written “Consent Judgment.” On September 13, 2013, Plaintiff's counsel faxed a letter to Defendant's counsel requesting his signature on the judgment or a response. On October 1, 2013, Plaintiff's counsel sent a letter to the trial court informing that Defendant's counsel had not responded to or signed the prepared judgment; along with this letter, Plaintiff's counsel submitted the “Consent Judgment,” signed only by himself, to the trial court for signature.

On October 4, 2013, Plaintiff's counsel sent notice by fax to Defendant's counsel informing him that “Mr. Macquet's scheduled payment according to the Consent Judgment agreement of $500.00 due October 1, 2013” had not been received and requested a response as to the status of the payment.

On October 7, 2013, the trial court's law clerk sent a message by fax to Defendant's counsel informing him that the consent judgment signed by Plaintiff's counsel had been submitted, requesting a response or signature by Defendant's counsel, and informing him that the trial court would sign the judgment if no response was received by October 15, 2013. The trial court received no response and signed the submitted consent judgment on October 17, 2013. On the judgment, the trial court noted, “[n]otwithstanding [counsel's] refusal to sign, the above Judgment reflects the consent entered on the record by [counsel] and his client.”

On January 22, 2014, Plaintiff filed a request for a writ of fifa to be issued by the Clerk of First City Court “directed to the Constable of Orleans Parish, as per Judgment dated October 17, 2013, against the Defendant, Dominique M. Macquet[.]” At the same time, Plaintiff also filed a petition for garnishment, citing the October 17, 2013 judgment as the basis for the writ of fifa and garnishment. In pertinent part, the petition states, “[o]n October 17, 2013, judgment was rendered in this Court against Defendant, ..., in the sum of $11,920.00, together with interest at the legal rate from the date of judicial demand October 6, 2010 until paid, 25% of the principal and interest as attorney's fees and all costs of these proceedings, all of which more fully appears in the certified copy of the judgment attached to and made a part of this petition.” The petition further states that no suspensive appeal had been taken from the judgment, the legal delays had expired, and the judgment is in full force and effect. Plaintiff attached a copy of the October 17, 2013 consent judgment to the petition for garnishment and the request for the writ of fifa...