ACTION OILFIELD SERVICES, INC.
ENERGY MANAGEMENT COMPANY
Appealed from the 18th Judicial District Court In and for the
Parish of West Baton Rouge State of Louisiana Case No.
1043095  The Honorable J. Kevin Kimball,
L. Cabes Lafayette, Louisiana Counsel for Defendant/Appellant
Energy Management Company
Gros Martin K. Maley, Sr. Stacey B. Stephens Donaldsonville,
Louisiana Counsel for Plaintiff/Appellee Action Oilfield
BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.
suit on an open account, the defendant appeals a summary
judgment in favor of the plaintiff. For the reasons set forth
herein, we affirm.
AND PROCEDURAL HISTORY
Action Oilfield Services, Inc. ("Action"),
performed oilfield pipeline-related work for defendant,
Energy Management Company of Texas
("Energy"). Upon completion of the work, Energy failed
to pay the entire balance due, despite written demand by
Action. As a result, Action filed a suit on open account on
August 15, 2016, demanding payment of the balance due ($43,
249.00), plus judicial interest, costs, and reasonable
attorney fees pursuant to La. R.S. 9:2781. Energy answered
the petition, asserting that its obligation to pay Action had
been extinguished by compromise, novation, and/or accord and
satisfaction; to wit:
On or about April 18, 2016, a check was issued to the
plaintiff in the amount of $57, 000, the memo line of which
check contained the following handwritten note:
"EMCO's $57, 000 is full 100% payment for all
services-materials from Action Services on #1 White Well
through April 18, 2016," which check was accepted and
negotiated by Plaintiff, so that Defendant affirmatively
pleads the defense that the obligation was extinguished by
one or more of the following: compromise, novation, and/or
accord and satisfaction.
matter was set for a bench trial; however, on April 2, 2018,
the trial court issued an order, on its own motion and by
agreement of the parties, continuing the bench trial without
date and further ordering that:
[A]ny Motions for Summary Judgment shall be heard on
April 30, 2018 at 9 a.m. in Port Allen, Louisiana.
All Motions for Summary Judgment shall be filed no later than
April 17, 2018, and all moving parties shall
exchange said motions, memoranda, and affidavits with
opposing counsel on said date. Any memoranda in opposition
shall be exchanged, filed, and submitted to the court no
later than April 23, 2018. Any reply memoranda shall
[be] exchanged, filed, and submitted to the court no later
than April 26, 2018.
the issuance of this order, Action filed a motion for summary
judgment on April 16, 2018. Although it appears that Energy
mailed a copy of its own motion for summary judgment to
Action on April 17, 2018, nothing was filed by Energy in the
trial court prior to the April 30, 2018 summary judgment
hearing. At the conclusion of the April 30, 2018 hearing, the
trial court granted summary judgment in favor of Action for
the outstanding balance of $43, 249.00, plus twenty-five
percent attorney fees, interest, and costs from the date of
judicial demand. Energy's motion for summary judgment was
filed in the record on May 1, 2018, the day after the trial
court granted Action's motion for summary judgment and
signed the judgment in favor of Action. Energy's motion
does not appear to have been set for hearing or acted upon,
on June 4, 2018, Energy filed this suspensive appeal from the
trial court's April 30, 2018 summary judgment in favor of
Action. Energy argues on appeal that the trial court erred in
finding that Energy's tender and Action's subsequent
deposit of the check did not result in a compromise under La.
C.C. art. 3079 and in awarding twenty-five percent of the
balance owed as reasonable attorney fees under the open
courts review summary judgments de novo using the
same criteria that governs the trial court's
consideration of whether summary judgment is appropriate.
Red Star Consultants, LLC v. Ferrara Fire Apparatus,
Inc., 2017-0847, p. 4 (La.App. 1 Cir. 2/8/18), 242 So.3d
608, 611. That is, a motion for summary judgment shall be
granted if, after an opportunity for discovery, the motion,
memorandum, and supporting documents show there is ...