ROSEHILL CONSTRUCTION LLC v. TED HEBERT LLC (2026)

Ted Hebert, LLC (“Hebert”) appeals the district court judgment awarding attorney fees and costs to Rosehill Construction, LLC (“Rosehill”) after a jury trial. For the following reasons, we affirm in part, amend in part, vacate in part, and remand with instructions.

FACTS AND PROCEDURAL HISTORY

After Rosehill prevailed in a six-day jury trial in this construction contract matter, Rosehill filed a motion with the district court to fix and tax attorney fees and costs.¹ In its motion, Rosehill requested that the court tax as costs expenses incurred by Rosehill in the amount of $40,654.53 pursuant to La. Code Civ. P. art. 1920, La. R.S. 13:3666, La. R.S. 13:4533, and Sections 9.03 and 9.04 of the subcontract, as well as attorney fees in the amount of $307,821.25 pursuant to Sections 9.03 and 9.04 of the subcontract. Rosehill attached to its motion several documents, including, among other documents, the subcontract between Rosehill and Hebert, a detailed attorneys’ billing invoice, the suit ledger from the district court, invoices from Rosehill's expert, deposition invoices, and the affidavit of Rosehill's lead attorney, Kelsey Funes.

Hebert responded to the motion, contending that the attorney fees requested by Rosehill were “excessive and improper” and objecting to several specific charges listed in the attorneys’ billing invoice attached to Rosehill's motion. Hebert also contended that the costs Rosehill requested were “excessive and improper” and objected to several specific costs submitted by Rosehill.

Rosehill's motion came before the district court for a hearing on August 21, 2023. During the hearing, Rosehill and Hebert presented oral argument, and the court took the matter under advisement and ordered the parties to file their proposed judgments. On September 26, 2023, the district court signed a judgment granting Rosehill's motion to fix and tax attorney fees and costs and awarding attorney fees in the amount of $307,821.25 and costs in the amount of $40,654.53. Hebert appeals from this judgment, arguing that the district court erred by awarding excessive attorney fees to Rosehill and by awarding attorney fees to Rosehill despite Hebert's affirmative defenses.²

LAW AND ANALYSIS

I. Attorney Fees

The reasonableness of attorney fees is within the great discretion of the district court, and the exercise of this discretion will not be reversed without a showing of a clear abuse of this discretion. Naquin v. Louisiana Power & Light Company, 2005-2104 (La. App. 1st Cir. 11/17/06), 951 So.2d 228, 232, writ denied, 2006-2979 (La. 3/9/07), 949 So.2d 441. In awarding attorney fees, the district court is allowed to call upon its own experience and expertise in the valuation of legal services rendered by an attorney. Action Oilfield Services, Inc. v. Energy Management Company, 2018-1146 (La. App. 1st Cir. 4/17/19), 276 So.3d 53 8, 544.

The factors to be taken into consideration in determining the reasonableness of attorney fees include: 1) the ultimate result obtained; 2) the responsibility incurred; 3) the importance of the litigation; 4) the amount of money involved; 5) the extent and character of the work performed, 6) the legal knowledge, attainment, and skill of the attorneys; 7) the number of appearances involved; 8) the intricacies of the facts involved; 9) the diligence and skill of counsel; and 10) the court's own knowledge. Thomas v. A. Wilbert & Sons, LLC, 2015-0928 (La. App. 1st Cir. 2/10/17), 217 So.3d 368, 402, writs denied, 2017-0952, 2017-0967 (La. 11/13/17), 229 So.3d 478 and 230 So.3d 204.

In this case, after a six-day jury trial, Rosehill ultimately obtained a jury verdict totaling $431,652.88. The litigation began several years earlier when Rosehill filed a petition for damages in November 2018 and involved extensive pretrial practice, including motions for summary judgment, multiple sets of discovery, appellate writ work, and numerous court appearances. The case centered on a construction project requiring review of voluminous reports, engineering considerations, and numerous depositions. The affidavit of Ms. Funes revealed that she has extensive experience and legal knowledge in the field of construction litigation, and the associates who assisted her in the Rosehill litigation were also experienced and skilled attorneys. The district court judge who presided over the case from the beginning was highly familiar with the intricacies of the facts as well as the pretrial filings and the court appearances.

In its brief, Hebert objected to several specific charges listed in the attorneys’ billing invoice, which outlined the services provided and the costs incurred. Hebert argued that several charges were unwarranted and excessive. As long as the district court's award of attorney fees is reasonable under the factors and does not constitute an abuse of discretion, this court will not second-guess the attorneys’ handling of the day-to-day litigation, as the attorneys are entitled to prepare the case as thoroughly and completely as they feel necessary. Although the attorney fees award is undeniably high, considering the record as well as the relevant factors, it is not so excessive as to constitute an abuse of the district court's vast discretion. Accordingly, we affirm the portion of the judgment awarding attorney fees.

II. Costs

The district court has great discretion in awarding costs, including expert witness fees, deposition costs, exhibit costs, and related expenses. Harris v. City of Baton Rouge, 2016-0163 (La. App. 1st Cir. 12/22/16), 209 So. 3d 405, 408, writ denied, 2017-00155 (La. 3/31/17), 217 So.3d 360. On appeal, the district court's assessment of costs will not be disturbed absent an abuse of discretion. Royer v. Our Lady of the Lake Hospital Inc., 2017-1763 (La. App. 1st Cir. 2/22/19), 2019 WL 850576, *3 (unpublished). Hebert objected to several specific costs sought by Rosehill. We find merit in two of the specific costs raised by Hebert, including the costs of depositions and expert witness fees.³

Hebert contended that La. R.S. 13:4533 permits a court to tax the “costs of taking depositions and copies of acts used on the trial,” and Rosehill submitted invoices for depositions that were not “used on the trial.” Rosehill sought $10,757.80 in costs for ten depositions taken in this matter. This court has previously held that depositions used for impeachment purposes, but not introduced and accepted into evidence, are “used on the trial” for the purpose of La. R.S. 13:4533, and may be taxed as costs. See A.B.S. Services, Inc. v. James Construction Group, L.L.C., 2020-0841 (La. App. 1st Cir. 7/22/21), 2021 WL 3087879, *9 (unpublished), writ denied, 2021-01635 (La. 1/12/22), 330 So.3d 624; Gauthier v. Wilson, 2004-2527 (La. App. 1st Cir. 11/4/05), 927 So.2d 383, 387, writ denied, 2005-2402 (La. 3/31/06), 925 So.2d 125 8. Additionally, courts have allowed depositions used in a prevailing summary judgment to be taxed as costs.⁴ Sanderford v. Lombard, 96-1171 (La. App. 4th Cir. 12/11/96), 685 So.2d 1162, 1168, citing Riddle v. Louisiana Power and Light Co., 94-1386 (La. App. 1st Cir. 4/7/95), 654 So.2d 698, 703, writ denied, 95-1599 (La. 9/29/95), 660 So.2d 871. Rosehill argued in brief that the ten depositions were “used on the trial,” but did not state in its brief, affidavit, or during the hearing, which depositions were introduced at trial, used for impeachment purposes, or used for summary judgment.⁵ We could determine from the record that the deposition of Stephen Greaber was used at trial. Moreover, four depositions, including the depositions of Ted Hebert, Murray McCullough, Erin Trellis, and Stantec Consulting Services through its representative Andre Rodrigue, were attached to Rosehill's motion for partial summary judgment, which was granted on the issue of termination for cause. The evidence in the record does not clearly show that the remaining five depositions were used on the trial under La. R.S. 13:4533; thus, those five depositions may not be taxed as costs. Exhibit D attached to Rosehill's motion provided invoices for all of the depositions Rosehill sought as costs. Review of the exhibit shows that the total costs of the five depositions “used on the trial” were $6,102.85.⁶ Therefore, we reduce Rosehill's deposition costs award from $10,757.80 to $6,102.85.

Hebert also objected to the total amount of Rosehill's expert fees as taxable costs, contending that the amount included consulting costs used to assist the attorneys with the litigation. Rosehill submitted invoices for the costs of its expert, Jesse Arnold, totaling $13,621.98. As to expert witness fees in particular, La. R.S. 13:3666 provides, in pertinent part, as follows:

B. The court shall determine the amount of the fees of said expert witnesses which are to be taxed as costs to be paid by the party cast in judgment either:

(1) From the testimony of the expert relative to his time rendered and the cost of his services adduced upon the trial of the cause, outside the presence of the jury, the court shall determine the amount thereof and include same.

(2) By rule to show cause brought by the party in whose favor a judgment is rendered against the party cast in judgment for the purpose of determining the amount of the expert fees to be paid by the party cast in judgment, which rule upon being made absolute by the trial court shall form a part of the final judgment in the cause.

Expert witnesses are entitled to reasonable compensation for their time in court and for preparatory work done. Kelly McHugh and Associates, Inc. v. RPDE Development, LLC, 2019-0709 (La. App. 1st Cir. 3/5/20), 300 So. 3d 417, 428. Although a party can tax the reasonable costs of time spent by the expert in gathering facts necessary for his testimony, he may not include the time spent in consultation, which only assists the attorney in preparation for the litigation. Falgout v. American Alternative Ins. Corp., 2023-1261 (La. App. 1st Cir. 6/27/24), 392 So.3d 674, 679. If a rule under La. R.S. 13:3666 B(2) seeks to set the value on the time the expert witness was before the court, that value may be determined by the court on the basis of its observation of and experience with the expert witness at trial, without further proof. However, if the motion to tax costs seeks to value the total time employed by the expert, for example, time gathering facts necessary for his testimony, time spent away from regular duties while waiting to testify, or if the party seeks a fee outside of that normally charged by similar experts in that field, then mover must prove by competent evidence, what service and expertise the expert rendered in addition to that observed by the district court. Neither La. R.S. 13:3666 B(l) nor La. R.S. 13:3666 B(2) allows the district court to value the expert's services performed away from its hearing and observation without competent and admissible evidence. Wampold v. Fisher, 2001-0808 (La. App. 1st Cir. 6/26/02), 837 So.2d 638, 640.

Where a party seeks to include out-of-court work in an expert's witness fee, the law requires a contradictory and full hearing, with the burden of proving the reasonable value of the expert's out-of-court work being on the mover. Dakmak v. Baton Rouge City Police Department, 2012-1850 (La. App. 1st Cir. 9/4/14), 153 So.3d 511, 515. This court has routinely held that the mere assertions of an attorney and the expert via a submitted bill (or invoice) are insufficient to support a district court's award of out-of-court work costs of the expert witness. See Wingfield v. State ex rel. Dept. of Transp. and Development, 2003-1740 (La. App. 1st Cir. 5/14/04), 879 So.2d 766, 770. The invoices submitted by Rosehill seek to value the total time employed by its expert, including out-of-court services. The burden of proving the value of out-of-court services was on Rosehill, and although Rosehill submitted the expert's invoices, those invoices are insufficient to establish the value and to support the trial court's award of out-of-court work costs of the expert witness

While Rosehill is entitled to reasonable compensation for Mr. Arnold's time in court and for his preparatory work as costs, given the inadequacy in the record regarding the details of the fees charged by Rosehill's expert, we cannot determine if the district court's judgment taxing all of those costs to Hebert was an appropriate exercise or an abuse of its discretion. Under these circumstances, we vacate the portion of the district court judgment that awarded expert witness fees in full and remand for stipulations or a contradictory hearing to determine expert witness fees based on the district court's personal observations at the trial as well as the parties’ evidentiary support subject to cross-examination and the criteria discussed herein.

CONCLUSION

We affirm that portion of the judgment awarding Rosehill Construction, LLC $307,821.25 in attorney fees. We reduce that portion of the judgment awarding Rosehill Construction, LLC $40,654.53 in costs by $4,654.95 for the costs of depositions that were not “used on the trial” and further vacate that portion of the judgment that awarded Rosehill Construction, LLC $13,621.98 in expert fees as costs. The matter is remanded to the district court for further proceedings on expert fees in accordance with this opinion. Costs of this appeal are to be divided equally between the parties.

AFFIRMED IN PART; AMENDED IN PART; VACATED IN PART; AND REMANDED WITH INSTRUCTIONS.

I find that the trial court erred in awarding attorneys’ fees for that time billed by legal secretary, Emily Herltz, which was purely administrative. See Advanced Quality Construction, Inc. v. Amtek of Louisiana, Inc., 2016-0359 (La.App. 1 Cir. 10/28/16), 2016 WL 6330424 at *4. Further, although the remaining attorneys’ fee award appears to be on the higher end of the spectrum, I cannot say the trial court abused its vast discretion in determining that said fees were reasonable.

FOOTNOTES

1.   The procedural history and facts of this case were thoroughly discussed when this court considered the merits of the jury verdict in the companion case, Rosehill Construction, LLC v. Ted Hebert, LLC, 2024-0834 (La. App. 1st Cir. 11/21/25) 2025 WL 3249213, __ So.3d_, __. (“Rosehill I”).

2.   Hebert's second assignment of error was based on the argument that this court could reverse the district court and jury's denial of Hebert's affirmative defenses. This argument is moot as this court affirmed the jury verdict in Rosehill I.

3.   The remaining costs objected to by Rosehill were within the district court's discretion.

4.   We note that this court has held that La. R.S. 13:4533 refers to costs allowed to be taxed as court costs, but where the cost of depositions is provided for by contract as a portion of attorney fees, La. R.S. 13:4533 does not apply. See Sod Farm, L.L.C. v. Lakewood Development, L.L.C., 2011-1204 (La. App. 1st Cir. 3/28/12), 2012 WL 1070042 *2 (unpublished), writ denied, 2012-1236 (La. 9/21/12), 98 So. 3d 343 and Gurney as Trustee of Gurney Family Trust v. McCoy, 2024-03 82 (La. App. 1 Cir. 11/13/24), 405 So. 3d 940, 947-48 writ denied, 2024-01511 (La. 2/25/25), 401 So. 3d 661. In those cases, the contracts provided for costs and attorney fees incurred “should it be necessary to employ counsel” or “if legal proceedings are instituted.” In contrast, Sections 9.03 and 9.04 of the subcontract in the instant case do not clearly delineate payment for costs of the litigation; therefore, we considered costs under La. R.S. 13:4533.

5.   In A.B.S. Services, Inc. v. James Construction Group, L.L.C., this court affirmed the district court's award of costs for all of the depositions where ABS's attorney testified at the hearing on the motion to fix costs that the depositions it asked the court to tax as costs were used at trial, either as direct testimony or as impeachment evidence. A.B.S. Services, Inc., 2021 WL 3087879, *9.

6.   Exhibit D provided invoices for the deposition of Stephen Greaber in the amount of $587.60, Murray McCullough in the amount of $756.10, Erin Trellis in the amount of $817.10, Stantec Consulting Services in the amount of $1,112.35, and deposition costs of Ted Hebert totaling $2,829.70.

HESTER, J.

McClendon, C.J., dissents in part with reasons.