Dugas v. Summers

• Decision Date: 16 November 1976
• Docket Number: No. 7663,7663
• Citation: 339 So.2d 934
• Parties: E. J. DUGAS v. William A. SUMMERS, III and Caliste Beard, Jr.
• Court: Court of Appeal of Louisiana — District of US

Page 934

339 So.2d 934

E. J. DUGAS v. William A. SUMMERS, III and Caliste Beard, Jr.

No. 7663.

Court of Appeal of Louisiana, Fourth Circuit.

Nov. 16, 1976.

Writ Refused Feb. 14, 1977.

Thomas K. Regan, Crowley, for plaintiff-appellant.

Greenberg & Dallam, Nathan Greenberg, Gretna, for defendant-appellee.

Before LEMMON, MORIAL and BEER, JJ.

BEER, Judge.

Plaintiff-appellant, Elton J. Dugas, a private investigator, brought this action (initially in proper person) against defendant-appellee, William Summers, III, an attorney, for the recovery of funds allegedly due. Thereafter, Dugas retained counsel who supplemented the original petition by joining defendant-appellee, Caliste Beard, Jr., also an attorney, and alleging an oral partnership agreement between Dugas and both attorneys. That supplemental petition also increased the amount prayed for. A second supplemental petition was filed to add another demand to those listed in the first supplemental petition, and further increased the amount of the claim. A third supplemental petition merely noted a computational error in the second supplemental petition and, accordingly, revised the amount of the prayer downward. Several exceptions were filed, adjudicated and dismissed. The case was heard on the merits on various dates, and judgment was rendered in favor of defendants Summers and Beard, and against petitioner Dugas, who, thereafter, perfected this devolutive appeal.

Dugas claims that he made an agreement with Summers and Beard whereby he (Dugas) was to receive one-third of the attorneys' fees in all cases referred to them by him. Beard and Summers deny that there was such an agreement and contend that Dugas performed 'investigative services' for which he was fully paid.

Accordingly, the principal issues for our consideration are:

1. Does the record contain sufficient proof that such an agreement existed between the parties?

2. If so, is the agreement enforceable?

Dugas' basic contention is this: A meeting took place in Lafayette, Louisiana, between the litigants, during which they then and there confected a fee-splitting referral agreement which resulted in various cases being referred by Dugas to Summers and Beard. These cases produced attorneys' fees for Summers and Beard, who were to pay Dugas his agreed upon share of same. Their failure so to do resulted in this litigation.

The trial, lengthy and burdened with much repetitious testimony, commenced on January 28, 1974, and then adjourned to be reopened on February 7, 1974, May 19, 1975 and June 30, 1975.

Dugas testified that although he is a licensed private investigator, the arrangement he confected with Summers and Beard was based upon an understanding that he would receive one-third of the attorneys' fees on all the cases he referred to them. Dugas claims that the fee-splitting arrangement was consummated at a restaurant at Lafayette with Patrick Jones, William Summers, Caliste Beard, Roy Benoit and himself present at the meeting. A written contract was not confected because 'they (Beard and Summers) never wanted to give me a contract to the agreement. They said it was illegal for them to give me a contract.' Dugas contends that he did very little--if any--investigation in connection with any of the referred cases and confirms that he entered into similar fee-splitting arrangements with other attorneys in which he performed no investigative services but referred the cases to the attorneys in return for one-third of the attorneys' fee.

In describing the circumstances surrounding the taping of various telephone conversations between the litigants, Dugas testified that the taping commenced when he informed Beard that Summers was withholding certain monies acquired in settlements involving all three men and that, as a result, Beard went to Dugas' house and called Summers on the phone, knowing that Dugas' phone was rigged for recording. Dugas testified that he relied on the tapes because '. . . any time you are dealing with some crooks, you have to find something to combat the situation.'

In response to cross examination, Dugas acknowledged that he had been previously arrested at various times and charged with aggravated rape, defamation, simple rape, criminal conspiracy to commit burglary and impersonation of a police officer.

The testimony of Mrs. Carolyn Hebert, Mr. Essie Joseph Guidry, Mrs . Virgie Gaspard, Mr. Joseph A. Bonicard and Mrs. Maurice Savoie indicated little more than that Dugas was instrumental in referring them to Beard and/or Summers for the prosecution of various tort or compensation claims.

Scattered, but relatively unconfirmed references to threats against Dugas appeared in some of the testimony. For example, Linus J. Mier, a former employee of Dugas, testified that in January, 1974, he and Dugas had planned to go to Jacob's Restaurant in Lafayette for the purpose of attempting to record a conversation which was going to evidence a threat on Dugas' life. Lanier Cherry corroborated the Mier testimony to the extent that he (Cherry) informed Dugas that Beard had expressed a desire to 'waste' Dugas. Cherry seemingly qualified this startling testimony by stating 'we were all joking and acting crazy, having a few drinks' when Beard allegedly made such a statement at the Purple Peacock Lounge. Although Dugas testified that such threats were made, he admits that he, in turn, threatened Beard because he (Beard) and Summers were 'manipulating' not to pay him on one or more of the 'referred' cases . Beard's former partner, James Mouton, corroborates Beard's testimony that threats were made by Dugas against Beard.

Roy Benoit partially corroborated Dugas' allegation that some fee-splitting arrangement was discussed at the meeting in a restaurant in Lafayette although Mr. Benoit remembered very little else about the discussion and was unsure if Dugas, Summers and Beard were 'serious' about the agreement.

Summers and Beard deny the existence of any fee-splitting agreement with Dugas and contend that Dugas was employed--on occasions--as an investigator. Summers testified that the investigative fee agreements with Dugas varied with the cases. Even though Dugas brought some cases directly to him, Summers earnestly contends that there was no agreement other than that he (Dugas) was to be paid if he rendered investigatory services.

The testimony elicited at the trial indicated that Summers and Beard had various disagreements as to their own fee-splitting arrangement and, as a result, Beard eventually filed suit against Summers.

Much repetitious and generally indecisive testimony deals with the various cases which formed the common nucleus of the alleged Beard-Summers-Dugas relationship. The record indicates many instances of quarrelling between the examiner and the witness but little evidence of serious probative value.

Regarding the Lafayette meeting, Patrick Jones, an attorney who is a pilot, acknowledged that he flew Summers to Lafayette on April 30, 1969, for a meeting with Dugas and Beard and that some other person (presumably Roy Benoit) who had come to the restaurant with Dugas 'went off and talked to someone else' during lunch. Jones denies that Roy Benoit was at the luncheon table, thus contradicting the testimony of Benoit as well as Dugas on this point. Jones further testified that he was at the luncheon table during the entire course of the meal and heard no fee-splitting agreement consummated between Dugas on the one hand and Beard and Summers on the other. In fact, Jones contends that the discussions were relative to certain fee arrangements between Beard, Summers and himself.

Finally, James Mouton, attorney and former partner of Beard, testified that Dugas had approached him regarding a fee-splitting arrangement but that he rejected the proposal.

Certain cancelled checks were introduced into evidence allegedly supportive of the fee-splitting arrangement. In each instance, there was contravening testimony to explain the basis upon which the checks had been issued. For example,...