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Kaye v. Karp

Court of Appeals of Louisiana, Fifth Circuit

December 30, 2019

ALAN KAYE, MD
v.
RONALD A. KARP AND LAW OFFICE OF KARP, WIGODSKY, NORWIND & GOLD, P.A.

          ON APPEAL FROM THE FIRST PARISH COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 158-893, DIVISION "B" HONORABLE THOMAS F. GARDNER, JUDGE AD HOC PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, ALAN M. KAYE, MD Paul A. Lea, Jr.

          COUNSEL FOR DEFENDANT/APPELLANT, LAW OFFICE OF KARP, WIGODSKY, NORWIND & GOLD, P.A. Shayna Beevers Morvant, Steven M. Mauterer

          Panel composed of Judges Fredericka Homberg Wicker, Stephen J. Windhorst, and John J. Molaison, Jr.

          STEPHEN J. WINDHORST JUDGE

         Appellant, the Law Office of Karp, Wigodsky, Norwind & Gold, P.A. ("the Firm"), seeks review of (1) the trial court's February 21, 2019 judgment in favor of appellee/plaintiff, Alan Kaye, M.D., and against the Firm in the amount of Twenty Thousand ($20, 000) dollars, 15% attorney fees on the principal amount, legal interest from the date of judicial demand until paid and all court costs; and (2) the trial court's December 18, 2018 interlocutory judgment denying the Firm's motion for partial summary judgment. For the reasons stated herein, we affirm the trial court's December 18, 2018 judgment denying the Firm's motion for partial summary judgment. We further reverse the award of attorney fees in the February 21, 2019 judgment, amend the judgment to delete the award of attorney fees and as amended, affirm the February 21, 2019 judgment.

         PROCEDURAL HISTORY

         On March 28, 2016, Dr. Kaye, a board certified anesthesiologist practicing and living in Jefferson Parish, filed a petition on open account in First Parish Court against defendants, Ronald Karp ("Karp"), individually, and the Firm, a Maryland law firm. In the petition, Dr. Kaye contended he was contacted and retained by the Firm to testify as an expert witness in a medical malpractice case involving the Firm's client, Delores Moore, in Virginia, as per his fee schedule that he emailed to the Firm. He asserted the Firm agreed to pay for his services and directed him to examine Ms. Moore out of state, review numerous and voluminous medical records, and provide deposition and trial testimony as an expert. The petition alleged that the Firm refused to pay the balance of his bill for services rendered in the amount of $27, 437.47, despite demand.

         In response, defendants filed exceptions of lack of subject matter jurisdiction, personal jurisdiction, and no cause of action. Before the hearing on defendants' exceptions, Dr. Kaye filed a motion to amend his petition lowering the amount claimed to $20, 000.00 to meet the jurisdictional requirements of parish court.[1]

         On June 22, 2016, the trial court granted Karp's exception of no cause of action and Karp was dismissed with prejudice. The trial court found the exception of lack of subject matter jurisdiction "moot considering the filing of the Motion to Amend Petition reducing the principal demand to $20, 000.00." The trial court overruled the Firm's exception of personal jurisdiction and further found that the exception of lack of personal jurisdiction as to Karp was "moot and/or pretermitted."

         The Firm sought supervisory review of the judgment overruling its exception of lack of subject matter jurisdiction with this Court. The majority of a five-judge panel of this Court granted the writ application, granted the Firm's exception of lack of personal jurisdiction, and remanded the matter to the trial court for further proceedings.

         On October 4, 2016, in response to this Court's disposition, Dr. Kaye filed a motion to file a second amended petition, which was granted. The second amended petition, filed November 18, 2016, alleged that the Firm contacted him to retain his services as an expert and described in detail the services he provided at the request of and under the direction of the Firm. Dr. Kaye alleged that he performed the services in accordance with the agreement in Louisiana and out of state. He asserted that his deposition for the medical malpractice case was taken in Jefferson Parish and that a member of the Firm traveled to Louisiana to prepare for, attend, and defend Dr. Kaye in the deposition. The second amended petition alleged that the Firm was indebted to him in the amount of $20, 000.00.

         On December 8, 2016, the Firm filed an exception of lack personal jurisdiction and dismissal with prejudice as to the second amended petition. On April 19, 2017, the trial court granted the exception, dismissing Dr. Kaye's claims against the Firm with prejudice. Dr. Kaye appealed. On December 27, 2017, this Court found that the second amended petition, on its face, established sufficient minimum contacts over the Firm such that jurisdiction in Louisiana was proper. This Court reversed the trial court's judgment and remanded for further proceedings.

         On March 21, 2018, the Firm filed an answer and affirmative defenses to the second amended petition. On September 7, 2018, the Firm filed a motion for partial summary judgment arguing that Dr. Kaye was not entitled to attorney fees pursuant to La. R.S. 9:2781. The Firm claimed that the evidence showed that Dr. Kaye failed to submit a written demand correctly setting forth the amount owed pursuant to La. R.S. 9:2781. On December 18, 2018, the trial court denied the Firm's motion.

         The matter proceeded to a trial on the merits on February 6, 2019. At the conclusion of the trial, the trial court rendered judgment in favor of Dr. Kaye and against the Firm in the amount of Twenty Thousand ($20, 000.00) dollars, 15% attorney fees on the principal amount, legal interest from the date of judicial demand until paid and all court costs. The judgment was signed on February 21, 2019.[2] On February 21, 2019, the trial court issued a separate document captioned "Findings of Fact, Reasons for Judgment, and Order for Entry of Judgment." This appeal followed.

         FACTS

         At the trial, the following uncontroverted facts were established through the evidence and testimony. In 2014, Karp, a managing partner at the Firm, contacted Dr. Kaye and requested he serve as an expert witness in the Moore case pending in Virginia. Dr. Kaye, as part of his usual business practice, sent Karp his fee schedule for rendering professional services. The fee schedule provided the following rates for Dr. Kaye's services: (1) general rate of $500.00 per hour; (2) trial testimony $5, 000.00 a day; (3) travel expenses $100.00 per hour; (4) deposition testimony $800.00 per hour; and (5) initial retainer fee of $5, 000.00. In October 2014, after reviewing Dr. Kaye's fee schedule, the Firm mailed Dr. Kaye the initial retainer fee of $5, 000.00 and the medical records for their client in the Moore case. Over a period of approximately 17 months, Dr. Kaye provided on-going professional services to the Firm, including the following: (1) frequently discussing the Moore case with several attorneys at the Firm; (2) reviewed and re-reviewed after updates, the deposition transcripts of experts and fact witnesses, medical literature, [3] expert reports, and records; (3) examined Ms. Moore on three separate occasions (two times in Virginia and once in ...


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