Gill v. DiFatta

• Decision Date: 13 November 1978
• Docket Number: No. 9241,9241
• Citation: 364 So.2d 1352
• Parties: George W. GILL, Jr. v. Santo J. DiFATTA.
• Court: Court of Appeal of Louisiana — District of US

Page 1352

364 So.2d 1352

George W. GILL, Jr. v. Santo J. DiFATTA.

No. 9241.

Court of Appeal of Louisiana, Fourth Circuit.

Nov. 13, 1978.

Dodge, Friend, Wilson & Spedale, Gordon F. Wilson, Jr., Richard S. McBride, Jr., New Orleans, for plaintiff-appellee.

Bordelon & Carimi, Darryl J. Carimi, Gretna, for defendant-appellant.

Before LEMMON, GULOTTA and BOUTALL, JJ.

LEMMON, Judge.

This appeal involves an attorney's suit against his client for fees allegedly earned and unpaid and the client's reconventional demand for damages allegedly caused by the attorney's malpractice. The trial court awarded part of the fees sought by the attorney and dismissed the client's reconventional demand for damages, and both parties appealed. Evidence in support of the two demands was presented separately, and each demand will be separately discussed.

Gill's Demand for Attorney's Fees

In June, 1969 Santo DiFatta employed George Gill to perform various legal services, as requested, for a fee of $25.00 per hour. Although DiFatta at the time was the principal mover in the proposed construction of a marina on property leased by Lake Island Realty Company from the Board of Levee Commissioners of the Orleans Levee District (Levee Board), Gill performed work in furtherance of the project only upon assignment of specific tasks by DiFatta.

During the next 19 months Gill handled numerous legal matters for DiFatta, but did not submit periodic bills for these services. In response to Gill's requests for payments on account during this period DiFatta made four payments, in various amounts totaling $4,000.00, the last being made on May 20, 1970. In February, 1971 Gill submitted an itemized statement for an additional $32,166.93 and subsequently sued for that amount. After trial on the merits judgment was rendered awarding $11,051.88 over and above DiFatta's payments, subject to another undisputed credit for certain expenses paid by DiFatta.

On appeal DiFatta does not contest the amount awarded (except implicitly as to the amounts charged for the services which allegedly constituted malpractice), and in fact he praised Gill's efforts in the handling of many matters covered by the statement. On the other hand, Gill's sole argument on appeal as to this issue is that two expert attorneys testified the fees listed on the statement were reasonable.

Of the fees disallowed or reduced by the trial judge, the first is a compilation of charges for office consultations. The reduction from the total amount itemized on Gill's time sheet represents a factual finding as to the number of hours proved, and Gill makes no showing of manifest error in this determination. Another reduction not seriously disputed by Gill is a $1,000.00 fee, lowered to $500.00, for certain work with the Levee Board, part of which perhaps represents duplication of other charges.

As to reductions in fees for three litigated cases, the parties had not agreed upon a fixed fee for any of the matters, and Gill had not kept time records. In the Bush case involving defense of a suit on a promissory note, Gill filed an exception and undertook discovery and other preliminary work in a matter which never went to trial. The reduction of a $4,634.33 charge (10% Of the note sued upon) to $1,500.00 and costs does not constitute an abuse of discretion. In the Dominican case involving cancellation of a lease, the judge reasonably allowed 10% Of the total amount of the gross payments in the primary term of the lease which Gill successfully defended, rather than 10% Of the total payments, including renewals, as billed. And in the Vandervort case involving a partial fee for architectural work in planning the marina, there was no abuse of discretion in awarding $1,000.00 and costs for preliminary work when the case was ultimately settled by another attorney for $2,000.00.

Finally, denial of Gill's percentage charge for recovering two negotiable notes was not manifestly erroneous when the record shows only that the notes were returned voluntarily upon Gill's demand during a four-day trip to St. Louis, for which DiFatta paid him an agreed fee of $500.00 per day.

DiFatta's Demand for Damages

DiFatta's principal claim in the amount of $150,000.00 is based on allegations of Gill's substandard performance of legal services involving DiFatta's application for permanent financing of the marina project, particularly advice by Gill that certain documents were legally sufficient to protect DiFatta's interests. DiFatta argues that he sustained damages because he paid $150,000.00 to a bogus financing group in St. Louis in reliance upon that advice.

In the spring of 1970 DiFatta had not yet secured permanent financing for the $5,800,000.00 marina project, although several local banks had expressed willingness to provide interim financing during construction, if an acceptable commitment for permanent financing was obtained in advance of construction. Moreover, the lease with the Levee Board required completion of certain construction by September 14, 1970 (18 months after execution of the lease). ¹

Around April, 1970 Cecil Hilburn, an insurance agent, introduced DiFatta to Ben Feinstein, an insurance broker from St. Louis who claimed to represent a group of investors interested in financing large construction projects. It soon became evident that the investors were actually brokers, but under the tightening time pressure DiFatta pursued the lead. Eventually, DiFatta and Hilburn's partner met with the group in St. Louis, and DiFatta agreed to pay a 7% Origination or broker's fee ($410,270.00) in advance for their obtaining a commitment for permanent financing on specified terms and to make a deposit of $50,000.00 by a certain date.

On May 11, 1970 (after DiFatta had not paid the $50,000.00 by the promised date) DiFatta and Hilburn's partner consulted Gill about the proposed transaction. (Gill contends he had nothing to do with the financing arrangements prior to this time.) DiFatta telephoned Joel Ginsburg, the St. Louis Broker, with Gill listening on an extension, and Gill overheard Ginsburg degrade and intimidate DiFatta. When Ginsburg told DiFatta the deal was off, the latter pleaded for continued assistance in obtaining financing. Gill, observing that no legitimate businessman would treat a customer in this manner, advised DiFatta against working with this group, but DiFatta said that he was "drowning" and the St. Louis brokers were his only hope to salvage his project.

DiFatta asked Gill and the vice-president of the bank that was to provide the interim financing to go with him to St. Louis to complete the application for a permanent financing commitment. At the last minute the banker was unable to make the trip, and Gill reluctantly accompanied DiFatta (according to...