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Delta Land & Investments, LLC v. Hunter Estates, Inc.

Court of Appeals of Louisiana, Second Circuit

January 11, 2017

DELTA LAND & INVESTMENTS, LLC Plaintiff-Appellee
v.
HUNTER ESTATES, INC., ET AL Defendants-Appellants

         Appealed from the Sixth Judicial District Court for the Parish of Madison, Louisiana Trial Court No. 09-90 Honorable Michael E. Lancaster, Judge

          GREGORY COOK Counsel for Appellants.

          COTTON, BOLTON, HOYCHICK & DOUGHTY, L.L.P. By: John Hoychick, Jr. Counsel for Intervenor/ Appellee, John Hoychick, Jr.

          Before CARAWAY, PITMAN & STONE, JJ.

          PITMAN, J.

         Defendants Hunter Estates, Inc., and 26 other persons or "their unopened successions" appeal the award of $50, 037.21 in expenses and attorney fees to Intervenor John Hoychick, who represented them in a suit for partition by licitation. For the following reasons, the judgment of the trial court awarding attorney fees is affirmed. Intervenor's request for attorney fees for frivolous appeal under La. C.C.P. art. 2164 is denied.

         FACTS

         Intervenor was originally hired by Ed Hunter and Lucky White, on behalf of Hunter Estates, Inc., and 26 other persons or their successions, [1]who all owned, in indivision, 480 acres of land in Madison Parish, to represent them in matters of several unopened successions, to obtain judgments of possession and to handle other related matters as they arose.

         Although Intervenor's employment began for the purpose of opening successions and securing judgments of possession, a short time after he was hired, it came to his attention that there were third parties in Georgia who had been sold an interest in the land by some of the former owners in indivision, and these third parties were asserting claims of ownership. In 2009, those third parties filed the underlying litigation of Delta Land & Investments, LLC v. Hunter Estates, Inc., et al, No. 09-90 on the docket of Madison Parish, for partition by licitation of the 480 acres at issue. With Defendants' consent, Intervenor's attention was diverted from his original purpose of opening and closing the successions to defense of the Delta Land & Investments litigation. During the time he represented Defendants, Intervenor filed many pleadings and memoranda, argued motions in court, conducted discovery and otherwise vigorously defended the lawsuit.

         On January 3, 2013, Defendants allegedly hired attorney William Hallack to represent them and informed Intervenor of the change. Intervenor fully cooperated and turned over the suit file to Hallack, asking him when he could expect payment from his former clients. The record contains email communication from Intervenor to Hallack requesting that Defendants pay him the money owed for his representation. The record also contains an email from Hallack to Intervenor, the purpose of which was to confirm notes made during a telephone conversation between them that: 1) Defendants Hunter/Hodges/Givens acknowledge owing the fees and costs that he had billed; 2) the bulk of the funds to pay the fees and costs will come from funds on deposit in the registry of the court in connection with some pending expropriation suits; 3) in order to access the funds, Hallack had plenty of legal work to do, and 4) Hallack planned to send Intervenor the motion and orders to withdraw and substitute counsel in the expropriation suits, the succession proceedings and the partition suit. Although Hallack took possession of the file materials, he never filed a motion to enroll as counsel. In July 2014, Ed Hunter and Lucky White contacted Intervenor and asked him to resume his role as their attorney.

         Intervenor stated that, in June 2015, he received a telephone call from the trial judge who told him that attorney Gregory Cook had enrolled in April 2015 as counsel of record representing Defendants in the case. The telephone call from the trial judge was the first notice he had that other counsel had been secured.

         Intervenor filed this petition for intervention for attorney fees on November 12, 2015, along with an attached exhibit listing fees for services allegedly rendered from April 13, 2009, until September 28, 2015, plus any other fees and costs incurred in the filing and prosecution of the intervention. A hearing was held on February 18, 2016. Intervenor was the only witness to testify, which he did by narrative, stating that he was first employed by the Hunter family, including Ed Hunter and Hunter Estates, Inc., various successions, and Lucky White, who was involved with the Hunter and Hodges families. He stated that his initial retainer was for the purpose of opening approximately 17 successions so that property owned by the families in Madison Parish could be placed in a limited liability company ("LLC"). The Givens family also became part of the group he represented since they have some ownership interest in Hunter Estates, Inc. He attempted to introduce into evidence a letter dated September 22, 2008, from him to Ed Hunter, which "basically kind of spells out some of what would have to be done." He contends this is a retainer letter. Defendants' attorney objected, stating that the letter was based on Intervenor's understanding and noted that it did not contain Ed Hunter's signature. Despite this fact, Intervenor insisted that it was a letter of retainer and that, on page nine, a request was made for a payment of $10, 000 to "start the process, " which he acknowledged he had received. Defendants' attorney's objections to the introduction of the letter were overruled.

         Intervenor stated that, during the course of preparation to open the successions, he became aware that a Mr. Barr from Georgia had acquired some undivided interest in the Hunter property. Barr filed the underlying lawsuit to partition the property, which caused the delay of the successions until the partition matter was resolved. Intervenor claims that all of the fees and expenses for which he was seeking recovery were incurred as a result of the defense of the underlying suit by Mr. Barr.

         When questioned by Defendants' attorney if the Hunters knew he was representing them in the partition suit, Intervenor answered affirmatively, but stated there was no separate agreement, other than an oral request by Ed Hunter and Lucky White to represent them in the partition, and his compliance with that request. No separate letter of representation confirming the agreement was sent to the parties. Ed Hunter is now deceased and cannot confirm these facts.

         Intervenor introduced his exhibit with the list of items billed and time spent totaling $50, 037.26, after credits for some payments received. He testified that, during Hallack's time as attorney, Hallack had confirmed to him that the Defendants acknowledged their debt to him. Defendants' attorney objected to hearsay, but he produced an email as written proof of their telephone conversation wherein Hallack confirmed and acknowledged that the fees were owed. Defendants' attorney objected to the admission of the email and Intervenor's business records as proof of retainer and admission of a debt.

         Intervenor further testified that, after Hallack failed to enroll as counsel, Ed Hunter and Lucky White approached him in July 2014 and asked him to resume his representation of them in the litigation. He stated that his representation of these clients was based on an hourly rate of $200 per hour and that his associate, Ashley Morris, was compensated at a rate of $125 per hour. He also stated that, although his agreement with the family was not in writing, they consented to the agreement by paying the charges for a while. Over time, Ed Hunter had made check payments of $1, 459, $8, 897.56, $2, 349.39 and $394.41, all of which were reflected in invoices detailed in his work records.

         Defendants' attorney asked for further proof of expenses, such as receipts from the Clerk of Court's Office, bank statements and canceled checks, to substantiate the document asserting the amount due. Intervenor stated that documentation other than his work records would have to have been subpoenaed and that Defendants' attorney had failed to issue one. He testified:

I am giving you my testimony. . . . I am giving to you the invoices that have been produced by my office repeatedly since 2010, and your clients never objected not the first time. The only time I received any objection to any of this, sir, is when you became their attorney.

         On cross-examination, Intervenor testified that the amounts due were primarily from the Hunter family since the Hodgeses always paid their debts and did not owe him anything other than their percentage of the Hunter Estate debt. Also during cross-examination, Defendants' attorney asked him, "At any time during your representation did you attempt to acquire an ownership interest in the Hunter Estate?" He answered negatively. Then he was asked, "Was it your understanding that you might be able to take some ownership interest in the event they can't pay these exorbitant legal fees?" He answered negatively again. He was also asked why none of the successions were ever closed and judgments of possession rendered, and he answered at least three times that, when the partition litigation began, the clients decided the property should be transferred from the estates into an LLC and that all of his time and energy was being spent on the partition suit rather than the successions.

         At the end of the hearing, the trial court commented, "I have to say, that Mr. Hoychick and his office has had a reputation for generations as being one of the top law firms in the State of Louisiana and that I have never known of any problem that he's had with any ethics" and then rendered judgment in favor of Intervenor for $50, 037.26. Defendants have filed a suspensive appeal. Intervenor answered ...


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