Carr & Assocs. v. Jones
| Decision Date | 10 May 2023 |
| Docket Number | 2022 CA 0946 |
| Parties | CARR AND ASSOCIATES, INC. v. ROSELLE JONES |
| Court | Court of Appeal of Louisiana — District of US |
Appealed from the Twenty-Second Judicial District Court Parish of St. Tammany • State of Louisiana Docket Number 2018-10569 • Division J, The Honorable Ellen M. Creel Presiding Judge
Anthony S. Maska Hammond, Louisiana and Joseph Raymond McMahon Metairie, Louisiana COUNSEL FOR APPELLANT DEFENDANT
Roselle Jones David L. Browne Cynthia M. Cimino Metairie, Louisiana COUNSEL FOR APPELLEE PLAINTIFF-Carr &Associates, Inc.
BEFORE: WELCH, PENZATO, AND LANIER, JJ.
In this suit to recover remuneration due for appraisal and expert services performed in connection with a homeowner's fire-loss insurance claim, the homeowner appeals the trial court's judgment rendered after a bench trial in favor of the expert. For the following reasons, we maintain the appeal; we affirm in part, amend in part, and affirm as amended.
The parties have a history of transacting business with one another. Roselle Jones was the owner of immovable property located at 1817 Napoleon Avenue in New Orleans, Louisiana. Ms. Jones hired Earl Carr, Jr.'s company, Carr &Associates, Inc. (collectively "Carr"), to perform appraisal and estimating services in connection with a hurricane claim filed with her homeowner's insurer Chubb &Son Inc./Chubb Group of Insurance Companies/Federal Insurance Company (collectively "Chubb"), dating back to Hurricane Katrina. Carr successfully helped Ms. Jones obtain insurance proceeds in excess of one million dollars from Chubb on her hurricane claim.
Shortly after settling the hurricane claim, Ms. Jones' property was extensively damaged by a fire on October 24, 2008. Ms. Jones made a fire-loss claim with her same insurer, Chubb. In January 2009, Chubb made an initial, unconditional payment of $622,777.00 to Ms. Jones on the fire-loss claim. Thereafter, Ms. Jones hired Carr as her appraiser regarding the remaining open items on her fire-loss claim. Carr was charged with identifying and appraising the scope and value of the repairs to restore the property to its pre-fire condition. The parties memorialized the contract in writing on October 6, 2009. The contract, titled "Agreement and Authorization Nominating the Appraiser," set Carr's fees at the rate of $300.00 "per man hour for work performed measured portal to portal." The contract also provided for attorney's fees, court costs, and collection fees in the event of Ms. Jones' nonpayment. Ms. Jones also signed an October 6, 2009 addendum, stating she understood there were no guarantees Carr's appraisal would yield additional payments from Chubb on her fire-loss claim. The parties do not dispute that Carr has never been registered or licensed as an appraiser in Louisiana. Chubb appointed Richard Huss as its appraiser. Carr and Huss agreed to the appointment of retired Judge Charles Hanemann as umpire to resolve any differences during the appraisal process.
Acting under the October 2009 agreement, Carr performed appraisal services for Ms. Jones through July 2012, on the remaining open items on her fire-loss claim. Carr obtained a partial appraisal award on Ms. Jones' fire-loss claim from Chubb in the amount of $477,426.00. Carr alleged, however, that Ms. Jones provided little to no cooperation in producing documentation on her fire-loss claim during the appraisal process to the frustration of both Carr and Chubb.
In 2012, the Legislature enacted La. R.S. 22:1807.1.[1] Effective August 1, 2012, La. R.S. 22:1807.1 requires appraisers for fire and extended insurance coverage to register and pay an applicant fee to the Commissioner of Insurance in order to engage in appraisal services. Prior to the enactment of La. R.S. 22:1807.1, Carr informed Ms. Jones that this legislation was being considered in an email dated March 30, 2012:
Are you back from your trip? If so[,] we need to move forward with the production of documentation requested. The insurance commissioner has a bill in the legislature that will most likely prohibit me from being an appraiser. If this passes [,] most bills go into effect in August. So we need to get this resolved ASAP. Please call me to set up a date and time to provide the documentation. I think this can be resolved quickly if you provide the documentation requested.
Between the August 1, 2012 effective date of La. R.S. 22:1807.1, and through March 2013, Carr communicated with Chubb, at Ms. Jones' request, in attempts to prevent Chubb from terminating the remaining open items on Ms. Jones' fire-loss claim. Other than those communications with Chubb, Carr performed no appraiser work on Ms. Jones' fire-loss claim. Carr informed Ms. Jones via email dated September 9, 2012, that he intended to withdraw as the appraiser if she failed to cooperation and refused to provide documentation related to her claim.
Six months later, in March 2013, Ms. Jones decided to terminate her fire-loss claim and move forward with a federal lawsuit that she had previously filed against Chubb.[2] Ms. Jones asked Carr to serve as an expert on her fire-loss claim in anticipation of trial. In a March 6, 2013 email, Ms. Jones gave Carr permission to speak to her attorney, Anthony S. Maska, regarding the litigation of her fire-loss claim. Thereafter, Carr worked as an "expert" on Ms. Jones' fire-loss claim litigation, helping to establish the extent of her damages. Carr generated an expert report, dated February 20, 2014, which he sent to Mr. Maska. The report indicated that the rate of Carr's expert services-for inspection, generating a report, and participating in mediation, deposition, and trial preparation-was $300.00 per hour.
Carr continued working as an expert on Ms. Jones' fire-loss claim litigation through April 20, 2014 (approximately one year), when she requested a final bill from Carr. Five days later on April 25, 2014, Carr emailed a final invoice to Ms. Jones. The final invoice showed an account billing statement for the appraiser work Carr performed from October 2009 through July 2012, as well as the expert services Carr performed from March 2013 through April 2014, at the rate of $300.00 per hour. The final invoice showed Ms. Jones owed Carr a total of $55,335.00 for his services. Carr's invoice reflected a partial payment of $5,000.00 made by Ms. Jones on April 2, 2014, leaving a total remaining balance of $50,335.00 due to Carr.
Ms. Jones did not pay Carr's final invoice. The parties discussed payment of the final invoice via email. On May 7, 2014, Ms. Jones offered to settle Carr's final invoice for $30,000.00, which Carr rejected. On May 21, 2014, Carr made a final demand for payment.
Thereafter, on June 30, 2014, Carr filed suit against Ms. Jones in the Civil District Court for the Parish of Orleans ("CDC"). Carr's petition alleged that "[i]n accordance with the remuneration agreed upon between the parties, the compensation due to petitioner ... is $50,335.00." Carr's suit was subsequently dismissed via a dilatory exception of improper service of citation upon Ms. Jones; thereafter, Carr properly served Ms. Jones. In response, Ms. Jones filed a declinatory exception raising the objection of improper venue. After the CDC signed a consent judgment[3] sustaining Ms. Jones' exception of improper venue, the matter was transferred to the Twenty-Second Judicial District Court ("22nd JDC") for the Parish of St. Tammany.
Ms. Jones then filed a peremptory exception raising the objection of prescription, arguing that suit was filed in an improper venue (the CDC) and did not interrupt prescription. The trial court sustained her exception. Carr's former counsel, The Law Offices of Robert C. Lehman, LLC, who had intervened in the lawsuit seeking attorney's fees and advanced litigation costs, appealed the trial court's judgment sustaining the exception of prescription. In Carr &Assocs., Inc. v. Jones, 2019-0550 (La.App. 1st Cir. 12/27/19), 292 So.3d 577, 584, this Court was tasked with determining whether the consent judgment constituted a legal barrier precluding consideration of whether the matter was timely filed in a court of proper venue in the context of Ms. Jones' exception of prescription. This Court held that the consent judgment on the exception of improper venue was not a legal barrier that precluded consideration of venue as an element of prescription; thus, the trial court was required to make an independent determination regarding whether suit was originally filed in the proper venue before ruling on Ms. Jones' exception of prescription. Upon remand, the trial court denied Ms. Jones' re-urged exception of prescription.
The matter was set for bench trial on February 10, 2022. The parties prepared a joint pre-trial order, appeared for an in-chambers pre-trial conference, and attended a settlement conference three days prior to trial. The day after the settlement conference, Ms. Jones moved to continue the bench trial due to an "unavoidable, work-related absence," alleging that she had FAA-mandated "multi-day pilot training in Phoenix, Arizona" set to begin on February 8, 2022. Carr opposed the continuance.
The matter proceeded to a one-day bench trial on February 10 2022. At the outset of trial, the trial court orally denied Ms. Jones' motion for continuance. After counsel for Carr rested his case-in-chief, counsel for Ms. Jones moved for a partial directed verdict regarding: 1) the scope of Carr's work under the parties' October 2009 contract after August 1, 2012; and 2) Carr's alleged failure to provide corroborating circumstances proving his entitlement to payment under a purported oral contract. Counsel for Ms. Jones argued that as of August 1, 2012, Carr could no longer...
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