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March 5, 2026 Get Citation Alerts Download PDF Add Note

David C. Flettrich, a Professional Engineering Corporation v. Dudley Debosier, a Professional Law Corporation

Louisiana Court of Appeal

• Citations: None known
• Docket Number: 2025-CA-0409
• Judges: Judge Tiffany Gautier Chase; Judge Dale N. Atkins; Judge Rachael D. Johnson

• Disposition: Affirmed

• Opinion

• Authorities (15)

• Cited By (0)

• Summaries (0)

• Similar Cases (34)

• PDF

Disposition

Affirmed

Lead Opinion

                        by Judge Dale N. Atkins

DAVID C. FLETTRICH, A * NO. 2025-CA-0409
PROFESSIONAL
ENGINEERING *
CORPORATION COURT OF APPEAL
*
VERSUS FOURTH CIRCUIT
*
DUDLEY DEBOSIER, A STATE OF LOUISIANA
PROFESSIONAL LAW *******
CORPORATION

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2022-11114, DIVISION “E”
Honorable Omar Mason, Judge

---

Judge Dale N. Atkins

---

(Court composed of Judge Tiffany Gautier Chase, Judge Dale N. Atkins, Judge
Rachael D. Johnson)

Edward J. Koehl, Jr.
ATTORNEY AT LAW
6731 Canal Blvd
New Orleans, LA 70124

COUNSEL FOR PLAINTIFF/APPELLANT, David C. Flettrich, A
Professional Engineering Corporation

W. Paul Wilkins
Todd Bruno
G. Adam Savoie
DUDLEY DEBOSIER, APLC
1075 Government Street
Baton Rouge, LA 70802

COUNSEL FOR DEFENDANT/APPELLEE, Dudley DeBosier, A
Professional Law Corporation

AFFIRMED
MARCH 5, 2026
DNA

TGC

RDJ

This civil dispute concerns allegations of breach of contract and amounts

purportedly owed on an open account. Appellant, David C. Flettrich, A

Professional Engineering Corporation (“Flettrich Corp.”), seeks review of the trial

court’s March 3, 2025 judgment, which denied its “Petition for Damages on Open

Account and for Breach of Contract” (“Petition”). Appellee is Dudley DeBosier, A

Professional Law Corporation (“Dudley DeBosier”). For the following reasons, we

affirm the trial court’s judgment.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

2017 Activity: Carbon Monoxide Exposure Incident and Expert Contract

In late 2017, Dudley DeBosier hired Flettrich Corp. as an expert on a carbon

monoxide exposure claim brought by its clients, Michael and Velma Casey (the

“Caseys”).1 The alleged exposure occurred in August of that same year at the

apartment complex where the Caseys lived at that time in Bossier City, Louisiana.

The contract between Flettrich Corp. and Dudley DeBosier (“Expert

Contract”) contained the following pertinent provisions:

1 Though Dudley DeBosier initially filed the Caseys’ petition for damages in state court

against B.H. Management and Great American, those defendants ultimately had the matter
removed to federal court.

1
4. Payment Terms

....

[D.] [A]ny portion of an invoice for authorized services which
exceeds the available monies in the retainer account shall be
paid by Client upon receipt of invoice. . . . an invoice not paid
within 10 (ten) days of receipt shall be considered overdue.

1. Duties of Client. The Client’s duties specifically include, but are not limited to:

B. To make all payments as specified in paragraphs 4 and 5
under the terms as specified in paragraphs 4 and 5.

....

D. To provide expert with copies of or access to all non-
privileged, arguably relevant documents, evidence, or
other materials in the case/project.

....

M. To provide all stop work instructions to the Expert in
writing.

N. To provide all time deadlines or cost-based or other
restrictions to the Expert in writing. . . .

....

1. Duties of Expert. The Expert’s duties are:

....

B. To formulate with honesty and due care and truthfully
express Expert’s opinion(s) in those areas (and only those
areas) where Expert feels qualified to render an opinion
and where Client has requested an opinion. Client agrees
that Expert’s opinion(s) are not preordained, might be
contrary to Client’s position, and are subject to
modification as a result of new or additional information.

....

[E.] [T]o prepare a written report if Client requests one.

1. Disputes. Where a dispute over an amount invoiced occurs, the following applies:

2
A. The Client must notify the Expert in writing that the
Client is disputing an invoice within 10 (ten) days of
receipt of invoice.

....

C. The Client must produce any and all evidence
substantiating any disputed amounts within 10 (ten) days
of receipt of invoice.

1. Additional Provisions

....

B. Scope of Work. Client is requesting that the Expert
provide the following expert services:

1) Perform evaluation of the water heating and the
heating, ventilating and air conditioning (HVAC)
systems serving the specific apartment complex
building in which carbon monoxide poisoning was
an issue to determine compliance with building
code regulations as well as the origin and flow of
carbon monoxide in both the interior and the
exterior of the apartment complex building, and
render opinions in a written report.

The record establishes that Flettrich Corp. drafted the contract.2

December 2019 Activity: Reports

David C. Flettrich (“Mr. Flettrich”), P.E., president of Flettrich Corp.,

visited the Caseys’ former apartment in August 2019; and Flettrich Corp. then

issued a report on the conditions that Mr. Flettrich discovered that he deemed

unsafe and “life safety concerns” in December 2019 (the “December 2019 Unsafe

Conditions Report”). Mr. Flettrich contended his professional obligations

compelled him to do so. Flettrich Corp. also issued its expert opinion in the Casey

matter in December 2019 (the “December 2019 Expert Report”). Thereafter,

2 More particularly, this was a form contract from Seak, “a very large expert witness

company,” but “over the years” Flettrich Corp. had “made slight modifications here and there.”

3
Flettrich Corp. billed Dudley DeBosier for both Reports (“December 2019

Invoices”).

January 2020 Activity: First Stop Work Instruction

In response to Flettrich Corp.’s December 2019 Invoices, on January 3,

2020, Adam Savoie (“Mr. Savoie”), an attorney at Dudley DeBosier working on

the Casey matter, emailed Mr. Flettrich and informed him that he found Flettrich

Corp.’s billing to be “astounding.” Additionally, Mr. Savoie instructed: “[P]lease

do not perform any additional work on this file until instructed otherwise by the

firm” (“January 2020 Stop Work Instruction”). Dudley DeBosier ultimately paid

the December 2019 Invoices.

May 2020 Activity: Forthcoming Deposition and Letter

Thereafter, on May 15, 2020, Mr. Flettrich learned that opposing counsel in

the Casey matter wished to depose him. Then, on May 28, 2020, Mr. Flettrich sent

a letter to Dudley DeBosier (“May 2020 Letter”). In pertinent part, the letter stated:

1. In accordance with paragraph 6.D of our Expert . . . Contract . . ., please provide me with copies of or access to all non- privileged, arguably relevant documents, evidence and other materials in the case/project that have not previously been provided to me. . . .

Please note that I do not need to be provided any of the 86 court
documents listed in the attached docket report that I printed
from the Pacer [sic3] website . . . because I have access to each
document contained in the docket report through my Pacer [sic]
account.

....

1. In accordance with paragraph 6.C of our Expert Contract, I request that you replenish the retainer by issuing a retainer check in the amount of $9,600.00, which will provide for an additional 32.0 hours of my time. Although the exact amount of

3 PACER is the electronic records database for the federal courts. The Casey matter was

in the federal court system.

4
the additional time that will be required of me is indeterminate,
a retainer equal to the initial retainer amount of $3,600.00 that
is specified in paragraph 4 of our Expert contract will provide
for only 12.0 additional hours of my time and is clearly
inadequate to compensate me (1) for the time I expended
subsequent to December 21, 2019 (the last day that you were
invoiced for my time), e.g., for the time I expended obtaining
new information from the Office of the State Fire Marshal
(“OSFM”) and the City of Bossier, for the time I expended
reviewing the 86 court documents . . .. (see ATTACHMENT 1)
for the purpose of determining what existing non-privileged,
arguably relevant documents, evidence and other materials in
the case/project have not yet been provided to me, etc., and (2)
for the additional time that I will be required to expend, e.g., for
the time I will expend preparing written correspondence,
consulting with you, reviewing all new information, preparing a
supplemental report, responding to discovery requests,
organizing my files for production at my deposition, preparing
for my deposition, reading and signing my deposition
transcript, providing written statements identifying changes in
form or substance to my deposition transcript, etc.

....

1. Please provide me with the current deadline for supplementing my December 17, 2019 Expert Report. . . .

As delineated above, Mr. Flettrich requested that Dudley DeBosier replenish the

retainer in the amount of $9,600. Mr. Flettrich contended this was necessary to

compensate for the time he had expended working since December 2019, i.e.,

including work done after the January 2020 Stop Work Instruction, and for the

additional time he intended to spend on the Casey matter performing the various

tasks listed in Paragraph 3, including deposition-related tasks but also “preparing a

supplemental report.”

June 2020 Activity: Second Stop Work Instruction and First Supplemental
Report

In response to Mr. Flettrich’s May 2020, letter, Mr. Savoie sent another

email to him on June 3, 2020:

5
Please do not perform any additional work on this case until you
receive further instruction from our office. Further, please do not bill
this firm for any work that has not been requested by you and
approved by our office. This notice takes the place of any previous
understanding you may have had on how and when to perform work
in this case.

(“June 2020 Stop Work Instruction”).

Nonetheless, on June 12, 2020, Flettrich Corp. issued a supplemental report

(“June 2020 Supplemental Report”). When testifying at the trial of this matter and

asked why he prepared this report, Mr. Flettrich responded he had to do so because

he had become aware of code violations at the Caseys’ former apartment complex.

Mr. Flettrich expounded this knowledge came from information he received

subsequent to December 2019 from the Office of the State Fire Marshal and the

City of Bossier in response to public records requests he made. As Mr. Flettrich

explained, because he received the information after submitting his December

2019 Expert Report, he had not addressed the code violations in that report.

July 2020 Activity: Phone Call and Mr. Flettrich’s Deposition

On July 27, 2020, prior to Mr. Flettrich’s deposition, Mr. Flettrich and Mr.

Savoie spoke by telephone. Mr. Savoie testified at the trial of this matter that he

only authorized Mr. Flettrich to review ten deposition transcripts in preparation for

his deposition and specifically instructed Mr. Flettrich not to perform any other

work. Additionally, Mr. Savoie testified that he told Mr. Flettrich to separately bill

for his deposition-related work. The record reflects Mr. Flettrich complied with

this latter request.

According to Mr. Flettrich’s trial testimony, he had already read one of the

deposition transcripts (that of David Reed (“Mr. Reed”)) prior to this call with Mr.

Savoie because he had independently downloaded it from PACER. Further, Mr.

6
Flettrich testified he did not read all of the deposition transcripts before his

deposition as instructed, instead reading some after the fact. One of the depositions

Mr. Flettrich read after his deposition was that of James Koch (“Mr. Koch”). Mr.

Flettrich testified that Mr. Reed’s and Mr. Koch’s depositions presented new

information to him, chiefly that a flood had occurred in the boiler room of the

Caseys’ building mere days before the alleged carbon monoxide exposure incident.

Additionally, Mr. Flettrich testified that photographs introduced during his

deposition of a dislodged vent pipe in the boiler room of the Caseys’ building also

constituted information that was new to him. Flettrich Corp. alleged these new

pieces of information required Mr. Flettrich to once again supplement his report.

August and September 2020 Activity: Reiterated Request for $9,600 and
Retainer Replenishment

Subsequently, on August 10, 2020, Mr. Flettrich emailed Mr. Savoie and

again requested a replenishment of his retainer “to cover the professional services

described in detail in [P]aragraph 3 of [his] May 28, 2020 letter.” Mr. Flettrich

contended that, “[a]t a minimum, the retainer amount should be no less than the

$9,600.00 requested in [P]aragraph 3 of his May 28, 2020 letter.”

In a check dated September 14, 2020, Dudley DeBosier replenished Flettrich

Corp.’s retainer in the amount of $9,600 on September 4, 2020 (“September 2020

Retainer Replenishment Payment”). In the letter Mr. Savoie sent with the payment,

he stated: “Enclosed as requested is our firm’s check . . . in the amount of

$9,600.00 as replenishment of your retainer fee” (“September 2020 Retainer

Replenishment Letter”).

7
December 2020 Activity: Second Supplemental Report and Invoice

Then, on December 11, 2020, Flettrich Corp. submitted another

supplemental report (“December 2020 Supplemental Report”) to account for the

new pieces of information Mr. Flettrich obtained since his June 2020 Supplemental

Report, i.e., the dislodged vent pipe photographs and the flood in the Caseys’

building prior to their carbon monoxide exposure.

On December 28, 2020, Flettrich Corp. submitted an invoice to Dudley

DeBosier for work Mr. Flettrich performed from December 2019 to December

2020 (“December 2020 Invoice”), excluding his-deposition related work that he

delineated in a prior invoice and that the September 2020 Retainer Replenishment

Payment covered. The amount of the December 2020 Invoice less the amount

remaining in the retainer account from the September 2020 Retainer

Replenishment Payment was $29,362.68. Dudley DeBosier did not dispute the

December 2020 Invoice in writing within ten days as the Expert Contract required

but also did not pay it.

December 2022: Petition

That December 2020 Invoice is what Flettrich Corp. sought to recover with

the filing of its Petition in December 2022. Therein, Flettrich Corp. named Dudley

DeBosier as the sole defendant and alleged that Dudley DeBosier owed Flettrich

Corp. the $29,362.68 delineated in the December 2020 Invoice.

November 2024 Trial

This matter proceeded to a judge trial in November 2024. In pertinent part,

the parties introduced into evidence: the Expert Contract; Mr. Savoie’s January

2020 Stop Work Instruction; Mr. Flettrich’s May 2020 Letter; Mr. Savoie’s June

2020 Stop Work Instruction; Mr. Flettrich’s August 2020 Email; and Dudley

8
DeBosier’s September 2020 Retainer Replenishment Payment and Letter.

Additionally, the trial court heard testimony from Mr. Flettrich and Mr. Savoie.

Though we have already incorporated parts of Mr. Flettrich’s and Mr. Savoie’s

testimony in the preceding sections, we now summarize some other relevant pieces

of their testimony.

Mr. Flettrich’s Testimony

When counsel for Dudley DeBosier asked Mr. Flettrich to confirm that he

never received “anything in writing [from Dudley DeBosier] asking [him] in form

or substance to deliver a written report other than” his December 2019 Expert

Report, Mr. Flettrich conceded, “[that is] correct.” Further, when counsel for

Dudley DeBosier asked Mr. Flettrich about the Expert Contract’s stop work

provision (Paragraph 6.M) and the requirement that any stop work instructions be

in writing, the following colloquy occurred:

Q. [The stop work provision of the Expert Contract is] so simple and
clear, no one can misinterpret that statement, right?

A. You issued me a stop work instruction. I agree, you issued a stop
work instruction.

Q. But you [did not] stop working, did you?

Mr. Flettrich ultimately responded, “No” that he did not stop working after the

January 2020 Stop Work Instruction. Counsel for Dudley DeBosier subsequently

pressed further:

Q. Did you ever receive another clear, unequivocal email, or
correspondence, or anything in writing that says start working on this
case again; yes or no?

A. No. No, I [did not].

Similarly, regarding the June 3, 2020 Stop Work Instruction, Mr. Flettrich

responded in the affirmative when asked whether the instruction contained therein

9
was “clear and unequivocal” and whether it satisfied Dudley DeBosier’s duty to

inform him to stop working as required by the Expert Contract.

Throughout his testimony, Mr. Flettrich indicated he had authority to issue

his supplemental reports and keep working upon receiving new information for

three reasons (1) Paragraph 7.B of the Expert Contract (in the “Duties of Expert”

section); (2) concerns for life safety; and (3) Federal Rule of Civil Procedure 26.

Counsel for Dudley DeBosier and Mr. Flettrich discussed this in more detail:

A. Yeah, but it is the second sentence [of Paragraph 7.B of the Expert
Contract] . . . . Client agrees that expert opinions are not preordained,
might be contrary to client’s position and are subject to modification
as a result of new or additional information. You agreed to allow me
to supplement my report based on new information. I got new
information from the [Office of the State] [F]ire [M]arshal and the
City of Bossier.

Q. That [was not] information that I provided to you though, right?

A. [Does not] matter. It [does not] say it has to be provided by you,
new information.

Q. You read this as a blank check that anytime you get new
information you can just generate a new report?

A. If [it is] pertinent to the case. That is what it says, new information.
It [does not] say where it came from.

Q. You mean to tell me that if you get new information tomorrow you
can keep billing me?

A. It depends on the information.

(People laughing)

A. No, I mean it depends on whether or not [it is] pertinent to the case.

Q. All right. I think my point is made there, Mr. Flettrich. . . .

....

A. If I had gotten new information again, maybe I would have to write
another report.

10
Q. There was no way Dudley Debosier could stop you from doing that
if you got new information, was there?

A. If [I am] supposed to comply with the Federal Rules of Civil
Procedure and my contract which allows me to, [I am] going to do the
work necessary to supplement my report.

Q. Mr. Flettrich, [that is] probably the part [that is] most disturbing
about all of this. Can you conceive of anything Dudley De[B]osier
could have done differently to get you to stop working on this case
other than send you two things in writing to get you to stop working?

....

[A.] You [could have] terminated my services.

Upon hearing Mr. Flettrich’s reply, counsel for Dudley DeBosier explained to Mr.

Flettrich that firing him—as he suggested—would have required Dudley DeBosier

to obtain and pay a new expert to prove the Caseys’ claim even though they

ultimately paid him nearly $75,000 to be their expert.

Mr. Savoie’s Testimony

Regarding Mr. Flettrich’s December 2019 Unsafe Conditions Report, Mr.

Savoie testified that Mr. Flettrich informed him of his intent to produce such a

report but neither informed Dudley DeBosier of his intent to bill the firm for it or

requested permission to bill for it. Mr. Savoie clarified that the December 2019

Expert Report was the only report that he had asked for because it contained the

relevant evidence for the Casey matter, not the December 2019 Unsafe Conditions

Report which delineated “a potentially unsafe condition as it existed in 2019”

rather than in 2017 when the Caseys’ carbon monoxide exposure occurred. Further,

when asked whether there was “any time he called upon . . . Mr. Flettrich to do

additional work or supplement the [December 2019 Expert] [R]eport” other than

his deposition, Mr. Savoie responded, “No.”

11
In light of same, Mr. Savoie stated he sent the January 2020 Stop Work

Instruction because he “was taken aback by the amount that had been billed, taken

aback by the fact that [Dudley DeBosier] had been billed for a report” it did not

request (i.e., the December 2019 Unsafe Conditions Report). Mr. Savoie stated that

his January 2020 Stop Work Instruction thus told “Mr. Flettrich on [sic] no

uncertain terms” that he (Mr. Savoie) found Flettrich Corp.’s “bills to be

astounding, and [Mr. Flettrich] needed to stop work on the Casey case.” Mr.

Savoie testified that with his June 2020 Stop Work Instruction, he likewise “tried

to be as crystal-clear as [he] could possibly be” that Dudley DeBosier did not want

Mr. Flettrich to perform any additional work unless and until he received further

instruction from the firm to do so; asked Mr. Flettrich not to bill the firm for any

work that had not been requested and approved; and emphasized that the notice

was to supplant any prior understanding Mr. Flettrich had as to how and when to

perform work on the Caseys’ case. Mr. Savoie testified that he issued these Stop

Work Instructions mindful that he “had an ethical obligation to [his] clients [the

Caseys] to not waste their money.”

Discussing Mr. Flettrich’s deposition in more detail, Mr. Savoie recalled the

July 27, 2020 phone conversation between him and Mr. Flettrich:

A. Mr. Flettrich’s deposition was coming up on July 31. I had not
spoken with him in months after the first and second stop work
instructions. Mr. Flettrich was asking for several documents. He was
asking for several depositions, and I asked for a phone conference off
the clock[4] to discuss his deposition and how to move forward in the
case. During that call I in no uncertain terms explained to him what he
was going to receive, which ended up being 10 deposition transcripts
in order to inform his opinions for the deposition. I specifically asked

4 Mr. Savoie stated at other times during the trial that, to a certain extent, he avoided

communicating with Mr. Flettrich out of concern for how much Flettrich Corp. billed for their
communications.

12
him to keep separate time for deposition related expenses simply
because I knew he was going to do work for his deposition, and if he
did work for his deposition and it was our responsibility to pay for it,
then we would have to pay for it.

....

Q. And so other than the July 27, 202[4] . . . phone call where you
talked about what you wanted him to do in connection with the
deposition, was there ever any request sent to Mr. Flettrich to go do
any additional work, find additional documents, develop additional
information?

A. No. In fact quite to the contrary during that phone call, I had
already sent him one email telling him to stop work, [I had] sen[t] him
another email telling him to stop work and he [was not] allowed to do
anything that was not authorized by the firm which in that case would
have been me. And during that phone call I made it crystal clear [I
am] going to give you these ten depositions, not the 15 you want. [I
am] not giving you all the other documents that you want and you can
render opinions based upon the documents that are provided. I [do
not] need anything else.

Insofar as he asked Mr. Flettrich to separate the charges for the deposition,

Mr. Savoie explained he did so to “know exactly what [Mr. Flettrich’s] time was

for doing th[at] task . . . .” Mr. Savoie confirmed Dudley DeBosier paid Mr.

Flettrich Corp. for same and testified that the September 2020 Retainer

Replenishment Payment of $9,600 was “solely” for the deposition. Clarifying, Mr.

Savoie explained he paid $9,600 because it “was what [he] estimated was going to

be the cost of those deposition related task[s].” Mr. Savoie further testified the

“$9[,]600 [payment] was never intended to authorize [Mr. Flettrich] to perform

additional work on the case nor was it meant as a green light to go ahead and bill

[for] . . . the work [Mr. Flettrich] had done after [the] first stop work instruction.”

When asked whether he made “any qualification” on the $9,600 payment, Mr.

Savoie explained that the July 27, 2020 phone call and Mr. Flettrich’s application

of that money to his deposition-related invoice did so.

13
In terms of Mr. Flettrich independently downloading documents from

PACER before his deposition, Mr. Savoie testified that apart from the ten

deposition transcripts he instructed Mr. Flettrich to read before his deposition, he

(Mr. Savoie) did not ask Mr. Flettrich to review any additional documents.

Likewise, Mr. Savoie testified he did not tell Mr. Flettrich to perform any work

after his deposition. Mr. Savoie stated that it was his, not Mr. Flettrich’s, “ultimate

decision on what documents to provide” to Mr. Flettrich based on his litigation

strategy and he “only needed Mr. Flettrich to do what was asked.”

Turning to the December 2020 Invoice from Flettrich, Mr. Savoie described

it as “basically the bill for everything [Mr. Flettrich] did from the end of 2019 until

the end of 2020” with the exception of the deposition-related tasks. Mr. Savoie

testified he did not believe Dudley DeBosier was responsible for paying it because:

“The contract said tell me to stop working in writing. I told him to stop working in

writing once. I told him to stop working in writing twice and he kept working.

[That is] why we were not going to pay the bill.” When asked whether he “[could

have] given [Mr. Flettrich] restrictions on spending money [and] on incurring

expenses,” Mr. Savoie responded, “I could have but I did something better. I told

him to stop working. [That is] the ultimate restriction he just [did not] want to

acknowledge it either time.” Mr. Savoie confirmed that other than having

previously issued the January and June Stop Work Instructions, Dudley DeBosier

did not specifically dispute the December 2020 Invoice in writing within ten days

of receipt. Further, Mr. Savoie confirmed Dudley DeBosier did not pay that

invoice.

14
March 3, 2025 Judgment And Reasons

At the conclusion of trial, the trial court ordered the parties to submit post-

trial memoranda and then took the matter under advisement before issuing its

March 3, 2025 judgment, which denied Flettrich’s Petition.

The trial court also issued written reasons for judgment that day. The trial

court reasoned that Dudley DeBosier’s September 2020 Retainer Replenishment

Payment adequately compensated Flettrich Corp. because it covered not only his

deposition-related work but also those “amounts billed in the December 2020

[I]nvoice that . . . could plausibly be for work authorized by Dudley De[D]bosier.”

The trial court listed that work as 1) work undertaken before the January 2020 Stop

Work Instruction and 2) the time Mr. Flettrich spent reviewing certain deposition

transcripts before his deposition (e.g., that of Mr. Reed) that Mr. Savoie ultimately

authorized him to review. Other than those two items, the trial court ruled “that the

December 2020 [I]nvoice billed for work that Dudley De[B]osier did not

authorize.”

Regarding the other work delineated in the December 2020 Invoice, the trial

court addressed Mr. Flettrich’s assertion that Paragraph 7.B of the Expert Contract

authorized him to perform it. The trial court found “that the parties did not intend

the ‘subject to modification’ language [of Paragraph 7.B of the Expert Contract] to

make any written stop-work instruction meaningless.” Moreover, the trial court

noted that the Expert Contract established “Flettrich[] Corp.’s duty to provide a

‘written report’ arose only if the client requested the same.” The trial court also

ruled “Flettrich[] [Corp.’s] reliance on [Federal] Rule [of Civil Procedure] 26 was

unavailing, as it sets forth ‘a party’s duty,’ and [Flettrich Corp./Mr. Flettrich] was

15
neither a party nor the representative of a party in the [carbon monoxide exposure]

case.”

Additionally, the trial court concluded Dudley DeBosier was not in breach

of the contract for failing to submit written notice of its dispute of the December

2020 Invoice within ten days of receipt because it had already twice issued stop

work instructions to Flettrich Corp. In its reasons for judgment, the trial court also

noted it had not awarded attorney’s fees to Flettrich Corp. under the Louisiana

Open Account Statute, La. R.S. 9:2781(A), because it had not ruled in Flettrich

Corp.’s favor.

ASSIGNMENTS OF ERROR

In its brief to this Court, Flettrich Corp. asserts eleven assignments of error:

1. The [t]rial [c]ourt erred as a matter of fact in failing to find that
   

   [Flettrich Corp.] began requesting payment of the $9,600 retainer
   replenishment by letter of May 28, 2020[,] to Mr. Savoie, an attorney
   with Dudley DeBosier, for the purpose of preparing written
   correspondence, consulting with Mr. Savoie, reviewing all new
   information, preparing a supplemental report, etc.

2. The [t]rial [c]ourt erred as a matter of law in failing to hold that
   

   [Dudley DeBosier’s] January 3 and June 3, 2020 stop work
   instructions to [Flettrich Corp.] were issued in bad faith and breached
   paragraph 7.B. of the Expert Contract.

3. The [t]rial [c]ourt erred as a matter of law in failing to hold that
   

   [Dudley DeBosier’s] January 3 and June 3, 2020 stop work
   instructions to [Flettrich Corp.] breached paragraph 6.D. of the Expert
   Retention Contract (“Expert Contract”) by failing to timely provide
   [Flettrich Corp. with] the depositions of [Mr.] Reed (February 19,
   2020) and [Mr.] Koch (May 15, 2020) concerning the flooding of the
   boiler room and were voided by defendant’s obligation to obtain and
   provide [Flettrich Corp.’s] Supplemental Expert Report No. 1 under
   Federal Rule of Civil Procedure 26.

4. The [t]rial [c]ourt erred as a matter of fact in failing to hold that
   during [Mr.] Flettrich’s July 31, 2020 deposition he was shown
   photographic exhibits of a dislodged vent pipe serving old boiler #1
   and the extent and height of the flooding of the boiler room which was

16
new and additional information he was unaware of prior to the
preparation of his June 12, 2020 Supplement Expert Report No. 1.

1. The [t]rial [c]ourt erred as a matter of law in failing to hold that
   the new and additional information produced during the July 31, 2020
   deposition of Mr. Flettrich would affect his previous opinions and
   would require his supplemental report in accordance with Fed. R. Civ.
   P. 26(e)(2).

2. The [t]rial [c]ourt erred as a matter of law in denying [Flettrich
   Corp.’s] recovery for expert services rendered in preparation of
   Supplemental Expert Report No. 2 dated December 11, 2020, which
   contained new and additional information not available prior to the
   June 12, 2020 Supplement Expert Report No. 1.

3.  The [t]rial [c]ourt erred as a matter of fact in failing to hold that
   

   [Flettrich Corp.] rescinded its January 3 and June 3, 2020 stop work
   instructions by its September 14, 2020 retainer replenishment
   payment of $9,600 “as requested” in response to [Flettrich Corp.’s]
   letter of May 28, 2020[,] and email of August 10, 2020.

4. The [t]rial [c]ourt erred as a matter of law in failing to hold that
   [Dudley DeBosier] rescinded its January 3, 2020 and June 3, 2020
   stop work instructions to [Flettrich Corp.] by [Dudley DeBosier’s]
   September 14, 2020 $9,600 retainer replenishment payment.

5. The [t]rial [c]ourt erred as a matter of law in failing to hold that
   the professional services invoiced to [Dudley DeBosier] in [Flettrich
   Corp.’s] December 28, 2020 progress billing invoice number 9
   (“PRB9”) are the very same professional services that were described
   in detail in paragraph 3 of [Flettrich Corp.’s] May 28, 2020 letter,
   were referenced in [Flettrich’s] August 10, 2020, email and were
   “authorized” by [Dudley DeBosier] in its September 14, 2020 retainer
   payment of $9,600 “as requested”.

6. The [t]rial [c]ourt erred as a matter of law in failing to hold that
   [Dudley DeBosier] breached the Expert Contract by failing to pay
   [Flettrich Corp.’s] December 28, 2020 invoice PRB9 in the amount of
   $29,362.68 and by its failure to timely dispute [Flettrich’s] December
   28, 2020 invoice PRB9 within 10 days of receipt.

7. The [t]rial [c]ourt erred as a matter of law in denying [Flettrich
   Corp.’s] recovery of professional fees in the amount of $29,362.68
   together with interest, costs and attorney fees pursuant to the
   Louisiana Open Account Statute. La. R.S. 9:2781.

In the argument section of its brief, Flettrich Corp. combines some of its

assignments of error. That is, Flettrich Corp. separately argues assignments of error

17
numbers one and two. But, Flettrich Corp. argues assignments of error three

through six together; assignments of error seven through nine together; and

assignments of error ten and eleven together. Dudley DeBosier similarly combines

its counterarguments to some of the assignments of error. Before resolving these

issues, however, we must address a preliminary matter.

PRELIMINARY MATTER

The trial court’s March 3, 2025 judgment states, in relevant part, “that the

Petition . . . filed by [Flettrich Corp.] is DENIED.” The judgment did not state

whether the denial was with or without prejudice. As this Court has explained,

“Generally, a judgment that is silent as to a dismissal with or without prejudice

must be construed as a dismissal ‘without prejudice.’” Allen v. State, 2024-0294, p.

3 (La. App. 4 Cir. 11/14/24), 402 So.3d 34, 36 n.3 (quoting Doe v. Jesuit High Sch.

of New Orleans, 2021-0284, p. 9 (La. App. 4 Cir. 11/10/21), 331 So.3d 426, 433).

Thus, with no indication otherwise in the judgment, we construe the trial court’s

denial of Flettrich Corp.’s Petition as a denial without prejudice.

DISCUSSUON

Assignment of Error Number One: The May 2020 Letter

In the section of its brief addressing its first assignment of error, Flettrich

Corp. points to the following statement in the trial court’s written reasons for

judgment: “[Mr.] Flettrich asked Dudley Deboiser to replenish the retainer account

with $9,600, explaining that the increase was based on his anticipated work related

to the deposition and based on hours he had already spent reviewing other records

from the [Casey] file.” Flettrich Corp. contends this factual finding was manifestly

erroneous because Paragraph 3 of Mr. Flettrich’s May 2020 Letter also stated he

would spend time on written correspondence, consultation, reviewing new

18
information, preparing a supplemental report, etc. Accordingly, Flettrich Corp.

asks this Court to reverse the trial court’s finding. Dudley DeBosier counters the

trial court’s factual finding was correct based on the context of the letter (sent after

Flettrich Corp. received the January 2020 Stop Work Instruction and after Flettrich

Corp. learned that opposing counsel in the Casey matter sought to depose Mr.

Flettrich); the credibility of Mr. Savoie’s testimony (i.e., Mr. Savoie’s testimony

that in the July 27, 2020 phone call he instructed Mr. Flettrich to only review ten

deposition transcripts to prepare for his deposition and to separate his billing for

his deposition-related work); and the context of the September 2020 Retainer

Replenishment Payment (the $9,600 payment covered Flettrich Corp.’s deposition

invoice plus a modest retainer balance because Mr. Savoie had authorized the

deposition-related work). With these arguments in mind, we turn to the applicable

standard of review.

An appellate court should not set aside a trial court’s findings of fact in a

breach of contract case unless they are manifestly erroneous or clearly wrong. IV

Waste, LLC v. Jim Hotard Props., LLC, 2023-0610, p. 23 (La. App. 4 Cir.

9/17/24), 400 So.3d 1008, 1025 (quoting 1100 S. Jefferson Davis Parkway, LLC v.

Williams, 2014-1326, p. 3 (La. App. 4 Cir. 5/20/15), 165 So.3d 1211, 1215).

Similarly, “the existence of an open account is a question of fact subject to the

manifest error standard of review.” La. Machinery Co. v. Bihm Equipment Co.,

2019-1081, p. 4 (La. App. 1 Cir. 8/10/21), 329 So.3d 317, 321 (citing Premier

Tugs, LLC v. Caillou Island Towing Co., 2019-1166, p. 10 (La. App. 1 Cir.

6/18/20), 307 So.3d 218, 226). When an appellate court reviews a record “under

the manifest error standard of review, the trial court’s reasonable evaluations of

credibility and reasonable inferences of fact should not be disturbed upon review.”

19
IV Waste, LLC, 2023-0610, p. 27, 400 So.3d at 1027 (internal quotation marks

omitted) (citations omitted). Further, under this standard of review, if “there are

two permissible views of the evidence,” then “the trial court’s determination

cannot be manifest error.” Id. (internal quotation marks omitted) (citations

omitted).

Flettrich Corp. assigns error to a statement in the trial court’s written reasons

for judgment. When a trial court delineates its findings in written reasons, “the

appellate court is entitled to review the written reasons for insight into the trial

court’s judgment.” Kirton v. Ramelli Janitorial Serv. Payroll, L.L.C., 2021-0035,

p. 8 (La. App. 4 Cir. 10/13/21), 366 So.3d 356, 361 n.7 (citing Brady v. Pirner,

2018-0556, p. 5 (La. App. 4 Cir. 12/5/18), 261 So.3d 867, 871 n.4). However,

“appeals are taken from the judgment––not the written reasons for judgment.” Id.

Because the trial court’s written reasons “are merely an explication of the trial

court’s” judgment, the written reasons “do not alter, amend, or affect the final

judgment being appealed.” Sunset Harbour, L.L.C. v. City of New Orleans, 2023-

0379, pp. 7-8 (La. App. 4 Cir. 11/29/23), 378 So.3d 157, 163 (quoting Wooley v.

Lucksinger, 2009-0571, 0584, 0585, 0586, pp. 77-78 (La. 4/1/11), 61 So.3d 507,

572).

Insofar as the trial court’s written reasons “do not alter, amend, or affect the

final judgment being appealed,” Flettrich Corp. fails to establish how the trial

court’s finding affected the ultimate judgment, i.e., denial of its Petition. Even if

the trial court misstated what [Mr.] Flettrich requested in his May 28, 2020 Letter,

we find the more pertinent question is what the trial court found in terms of what

Dudley DeBosier actually authorized in response to same. Requesting permission

20
is not the same as receiving permission. In other words, the fact that Mr. Flettrich

asked to do multiple pieces of work does not mean he received approval to do so.

While the May 2020 Letter listed numerous activities that Mr. Flettrich

planned to do, including the preparation of a supplemental report, the record

establishes—as the trial court’s reasons for judgment noted—that Dudley DeBosier

did not actually authorize everything Flettrich Corp. requested. As Dudley

DeBosier correctly argues, the trial court and this Court cannot consider Mr.

Flettrich’s May 2020 Letter in a vacuum. Rather, as delineated in the reasons for

judgment, Mr. Savoie had already issued Dudley DeBosier’s January 2020 Stop

Work Instruction prior to Mr. Flettrich’s May 2020 Letter; and Mr. Savoie issued

the June 2020 Stop Work Instruction in response to Mr. Flettrich’s May 2020

Letter. Then, during the July 27, 2020 phone conversation, Mr. Savoie only

authorized Mr. Flettrich to review ten particular deposition transcripts to prepare

for his own deposition. The trial court further found that when Flettrich Corp.

submitted an invoice for work related only to Mr. Flettrich’s deposition, the

September 2020 Retainer Replenishment covered that amount and pertained solely

to the deposition-related activities actually authorized by Dudley DeBosier. A

review of the record establishes the trial court’s findings in these regards were not

manifestly erroneous or clearly wrong. This assignment of error is without merit.

Assignment of Error Number Two: The Stop Work Instructions

In its written reasons for judgment, the trial court found Dudley DeBosier

validly issued stop work instructions to Flettrich Corp., such that any work

Flettrich Corp. performed after receiving those instructions was unauthorized

(other than the deposition-related work that Dudley DeBosier did authorize). In its

second assignment of error, Flettrich Corp. contends “[t]he [t]rial [c]ourt erred as a

21
matter of law in failing to hold that [Dudley DeBosier’s] January 3 and June 3,

2020 [S]top [W]ork [I]nstructions . . . were issued in bad faith and breached

paragraph 7.B. of the Expert Contract.” Essentially, Flettrich Corp. argues

Paragraph 7.B of the Expert Contract permitted it to ignore Dudley DeBosier’s

Stop Work Instructions. Further, Flettrich Corp. contends Dudley DeBosier issued

the Stop Work Instructions “in bad faith.” We will begin with Flettrich Corp.’s

contention about Paragraph 7.B of the Expert Contract.

Paragraph 7.B of the Expert Contract

We must consider and interpret the terms of the Expert Contract. Regarding

the standard of review, this Court has held that “[t]he interpretation of the language

of a contract is a question of law subject to the de novo standard of review on

appeal.” 1995 NOLA Holdings, L.L.C. v. Windy Hill Pictures L.L.C., 2023-0050, p.

12 (La. App. 4 Cir. 10/2/23), 376 So.3d 200, 209 (citation omitted).

“Interpretation of a contract is the determination of the common intent of the

parties.” La. C.C. art. 2045. “When the words of a contract are clear and explicit

and lead to no absurd consequences, no further interpretation may be made in

search of the parties’ intent.” La. C.C. art. 2046. “Each provision in a contract must

be interpreted in light of the other provisions so that each is given the meaning

suggested by the contract as a whole.” La. C.C. art. 2050.

A contract is “subject to interpretation from the instrument’s four corners

without the necessity of extrinsic evidence,” unless the contract is ambiguous in

which case “the use of extrinsic evidence is proper.” Bodenheimer v. Carrollton

Pest Control & Termite Co., 2017-0595, p. 7 (La. App. 4 Cir. 2/14/18), 317 So.3d

351, 357 (quoting Fleet Intermodal Servs., LLC v. St. Bernard Port, Harbor &

Terminal Dist., 2010-1485, p. 5 (La. App. 4 Cir. 2/23/11), 60 So.3d 85, 89). In

22
terms of the parties’ intent, the courts consider a contract to be ambiguous if “it

lacks a provision bearing on” the issue in dispute; the terms of the contract “are

susceptible to more than one interpretation”; “there is uncertainty or ambiguity as

to [the contract’s] provisions”; or “the intent of the parties cannot be ascertained

from the language employed.” 1995 NOLA Holdings, L.L.C., 2023-0050, p. 11,

376 So.3d at 208 (quoting Andry v. Omega Hosp., LLC, 2019-0459, p. 6 (La. App.

4 Cir. 11/6/19), 282 So.3d 1170, 1174). Even if “one party . . . create[s] a dispute

about the meaning of a contractual provision,” this alone “does not render the

provision ambiguous.” Id. at p. 12, 376 So.3d at 209 (quoting Campbell v. Melton,

2001-2578, p. 9 (La. 5/14/02), 817 So.2d 69, 76).

A plain reading of the Expert Contract reveals no ambiguity. The stop work

provision of the Expert Contract—Paragraph 6.M—required Dudley DeBosier

“[t]o provide all stop work instructions to” Flettrich Corp. “in writing.” With no

other qualifying language besides the “in writing” requirement, it is clear the

parties intended that Paragraph 6.M provided Dudley DeBosier with the authority

to stop Flettrich Corp. from working so long as the instruction was in writing.

Paragraph 7.B of the Expert Contract required Flettrich Corp. “[t]o

formulate with honesty and due care and truthfully express [its] opinion(s) . . . .”

The provision further stated that “[c]lient (Dudley DeBosier) agrees” the

opinion(s) “are subject to modification as a result of new or additional

information.” As Dudley DeBosier succinctly states in its brief, Paragraph 7.B

“describes the nature of expert opinions,” i.e., Flettrich Corp. was not bound by its

original opinion if new or additional information affected same. For example, if

Mr. Flettrich learned new information that affected the results he reached in his

December 2019 Expert Report, he could testify to this effect during his deposition

23
or at trial. Mr. Flettrich was not bound to repeat what was in his December 2019

Expert Report no matter what; even if he no longer believed it to be correct; and

even if it was unfavorable to Dudley DeBosier’s position in the Casey matter.

Paragraph 7.B of the Expert Contract gave him this leeway. Nonetheless, even if

Flettrich Corp. obtained new or additional information, Paragraph 7.B did not grant

Flettrich Corp. unilateral authority to continue working indefinitely and producing

reports without Dudley DeBosier’s authorization, especially in the face of stop

work instructions that complied with the Expert Contract’s writing requirement.

To hold, as Flettrich Corp. suggests, that it could continue working and

producing reports any time Mr. Flettrich received “new or additional information”

reads words into the contract that simply are not there. Further, to so hold, would

render the stop work provision meaningless in contravention of contractual

interpretation principles. See La. C.C. art. 2050 (instructing that “[e]ach provision

in a contract must be interpreted in light of the other provisions so that each is

given the meaning suggested by the contract as a whole”). Moreover, as Dudley

DeBosier observes, to interpret the contract as Flettrich Corp. suggests would mean

the only way Dudley DeBosier could stop Mr. Flettrich from working would be to

terminate his services. Such an action would mean that even though Dudley

DeBosier had already paid tens of thousands of dollars to Flettrich Corp., Dudley

DeBosier would then have to secure and pay a new expert just to stop Flettrich

Corp. from billing for unauthorized work. Unlike the position espoused by Dudley

DeBosier, Flettrich Corp.’s interpretation would lead to an absurd consequence in

contravention of contractual interpretation principles. Cf. La. C.C. art. 2046

(providing that “[w]hen the words of a contract are clear and explicit and lead to no

24
absurd consequences, no further interpretation may be made in search of the

parties’ intent”).

Moreover, La. C.C. art. 2056 provides: “In case of doubt that cannot be

otherwise resolved, a provision in a contract must be interpreted against the party

who furnished its text.” Mr. Flettrich testified that Flettrich Corp. furnished the

Expert Contract to Dudley DeBosier, so we must interpret it against Mr. Flettrich.

Thus, Flettrich Corp. is incorrect that Dudley DeBosier’s Stop Work Instructions

breached Paragraph 7.B. of the Expert Contract.

Bad Faith

As noted previously, Flettrich Corp. also contends Dudley DeBosier issued

the Stop Work Instructions “in bad faith.” Flettrich lists purported breaches of the

contract by Dudley Debosier as: (1) Mr. Savoie breached the notification

provisions of the Expert Contract (Paragraph 6.N) when he failed to notify Mr.

Flettrich that Dudley DeBosier had sought and obtained an extension of the initial

expert report deadline from December 17, 2019, to June 12, 2020; (2) Mr. Savoie

breached the payment provisions of the Expert Contract (Paragraphs 4.D and 6.B)

by failing to timely pay Flettrich Corp.’s invoices from December 2019; and (3)

Mr. Savoie breached the document production provision of the Expert Contract

(Paragraph 6.D) because he did not timely provide Mr. Flettrich with Mr. Reed’s

deposition or the flooding information obtained from said deposition.

Louisiana Civil Code Article 1983 provides, in pertinent part, that

“[c]ontracts must be performed in good faith.” As this Court has previously

explained, “Bad faith is not the mere breach of faith in not complying with a

contract, but a designed breach of it from some motive of interest or ill will.” N-Y

Assocs., Inc. v. Bd. of Comm’rs of Orleans Par. Levee Dist., 2004-1598, 1986, pp.

25
7-8 (La. App. 4 Cir. 2/22/06, 926 So.2d 20, 24 (citing Fertel v. Brooks, 2002-0846,

p. 15 (La. App. 4 Cir. 9/25/02), 832 So.2d 297, 306 n.12). In other words, bad faith

occurs when there “is an intentional and malicious failure to perform.” Volentine v.

Raeford Farms of La., L.L.C., 48,219, pp. 19-20 (La. App. 2 Cir. 7/24/13), 121

So.3d 742, 753 (citing Revision Comment (c), La. C.C. art. 1997). “The term bad

faith means more than mere bad judgment or negligence[,] and it implies the

conscious doing of a wrong for dishonest or morally questionable motives.” Id. at

p. 19, 121 So.3d at 753 (first citing MKR Servs., L.L.C. v. Dean Hart Constr.,

L.L.C., 44,456, p. 7 (La. App. 2 Cir. 7/8/09), 16 So.3d 562, 566; and then citing

Bond v. Broadway, 607 So.2d 865, 867 (La. App. 2d Cir. 1992)). The trial court’s

“determination of whether a party to a contract acted in bad faith is a factual

determination . . . subject to the manifest error/clearly wrong standard of appellate

review.” N-Y Assocs., Inc., 2004-1598, 1986, p. 8, 926 So.2d at 24.

Apart from listing Dudley DeBosier’s purported, above-delineated breaches

of the Expert Contract, Flettrich Corp. did not brief the law on what constitutes bad

faith in the breach of contract context and apply said law to Dudley DeBosier’s

supposed breaches. Rule 2-12.4(B)(4) of the Uniform Rules of the Courts of

Appeal states that “[a]ll assignments of error and issues for review shall be briefed.

The court may deem as abandoned any assignment of error or issue for review

which has not been briefed.” To properly brief an issue under that rule, a party

cannot merely “[r]estat[e] an assigned error in brief without argument or citation of

authority.” State v. Marie, 2007-397, p. 3 (La. App. 5 Cir. 11/27/07), 973 So.2d

780, 781 (citing State v. Lauff, 2006-717, p. 9 (La. App. 5 Cir. 2/13/07), 953 So.2d

813, 819). See also McCorvey v. McCorvey, 2005-174, p. 6 (La. App. 3 Cir.

11/2/05), 916 So.2d 357, 363 (noting the appellant argued on appeal that the trial

26
court erred in denying his motion for change of venue, yet the appellant “cite[d] no

case law in support of the change of venue”). Nonetheless, while we find Flettrich

Corp.’s argument lacking, it did cite to La. C.C. art. 1983. Under the circumstances

of the case, the more compelling ground to deny Flettrich Corp.’s bad faith

argument is that the record simply does not support a finding that Dudley

DeBosier’s alleged breaches were “the conscious doing of a wrong for dishonest or

morally questionable motives” or constituted “an intentional and malicious failure

to perform.” The trial court did not manifestly err in failing to hold Dudley

DeBosier was in bad faith. In sum, Flettrich’s second assignment of error lacks

merit.

Assignment of Error Number Five: Federal Rule of Civil Procedure 26’s
Applicability to Flettrich Corp.

We address Flettrich Corp.’s fifth assignment of error next (out of order)

because its resolution has bearing on subsequent assignments of error. The trial

court’s written reasons for judgment state, in pertinent part, that “Flettrich[]

[Corp.]’s reliance on [Federal] Rule [of Civil Procedure] 26 was unavailing”

because that rule applies to a party to litigation, yet Flettrich Corp. was not a party

in the Casey matter. In its fifth assignment of error, Flettrich Corp. asserts “[t]he

[t]rial [c]ourt erred as a matter of law in failing to hold that the new and additional

information produced during the July 31, 2020 deposition of Mr. Flettrich would

affect his previous opinions and would require his supplemental report in

accordance with Fed. R. Civ. P. 26(e)(2).” The trial court was correct.

Federal Rule of Civil Procedure 26(e) provides:

(1) In General. A party who has made a disclosure under Rule
26(a)--or who has responded to an interrogatory, request for
production, or request for admission--must supplement or correct its
disclosure or response:

27
(A) in a timely manner if the party learns that in some material
respect the disclosure or response is incomplete or incorrect,
and if the additional or corrective information has not otherwise
been made known to the other parties during the discovery
process or in writing; or

(B) as ordered by the court.

(2) Expert Witness. For an expert whose report must be
disclosed under Rule 26(a)(2)(B), the party’s duty to supplement
extends both to information included in the report and to information
given during the expert’s deposition. Any additions or changes to this
information must be disclosed by the time the party’s pretrial
disclosures under Rule 26(a)(3) are due.

By its express terms, Fed. R. Civ. P. 26(e)(2) applies to a party, not to the expert

witness himself. See also In re Thilman, 557 B.R. 294, 302-03 (Bankr. E.D.N.Y.

2016) (discussing Fed. R. Civ. P. 26(e) and explaining that “[a] proponent of an

expert report has a duty to supplement or correct information in the report in a

timely manner” and delineating when “[a] party’s duty to supplement its initial

expert report . . . arises”).

Federal Rule of Civil Procedure 26(e) “anticipates that in complex litigation

an expert witness may refine . . . his or her opinion as he or she prepares for trial.”

Capitol Justice LLC v. Wachovia Bank, N.A., 706 F.Supp.2d 34, 38 (D.D.C. Dec.

8, 2009) (alteration in original) (citation omitted). However, as explained by the

United States District Court for the Southern District of Florida, “Rule 26(e) ‘is not

a device to allow a party’s expert to engage in additional work, or to annul

opinions or offer new ones.” Riley v. Tesla, Inc., 603 F.Supp.3d 1259, 1270 (S.D.

Fla. May 11, 2022) (citation omitted). With Fed. R. Civ. P. 26(e)(2), “experts are

not free to continually bolster, strengthen, or improve their reports by endlessly

researching the issues they already opined upon, or to continually supplement their

opinions.” Minskoff v. Mendoza, 797 F.Supp.3d 238, 254 (E.D.N.Y. Sept. 1, 2025).

28
Flettrich Corp. and Mr. Flettrich cannot use Fed. R. Civ. P. 26(e) as justification

for his additional, unauthorized work and reports. As cited and quoted above,

federal jurisprudence is clear that Fed. R. Civ. P. 26(e) does not give experts carte

blanche. The new and additional information Mr. Flettrich learned during his

deposition did not yield, as Flettrich Corp.’s arguments to this Court suggest,

independent authorization for Mr. Flettrich to endlessly do additional work,

produce supplemental reports, and bill Dudley DeBosier, particularly in the face of

the firm’s Stop Work Instructions.

Neither Flettrich Corp. nor Mr. Flettrich was a party to the Casey litigation,

so Fed. R. Civ. P. 26(e)(2) did not impose a duty on them or require anything of

them. Flettrich Corp.’s fifth assignment of error is without merit.5

Assignment of Error Number Three: The Effect of the Stop Work
Instructions in light of Federal Rule of Civil Procedure 26’s Applicability to
Dudley DeBosier and Paragraph 6.D of the Expert Contract

In its third assignment of error, Flettrich Corp. argues: “The [t]rial [c]ourt

erred as a matter of law in failing to hold that [Dudley DeBosier’s] January 3 and

June 3, 2020 [S]top [W]ork [I]nstructions to [Flettrich Corp.] breached paragraph

6.D. of the Expert . . . Contract . . . by failing to timely provide [Flettrich Corp.

with] the depositions of [Mr.] Reed (February 19, 2020) and [Mr.] Koch (May 15,

2020) concerning the flooding of the boiler room and were voided by [Dudley

DeBosier’s] obligation to obtain and provide [Flettrich Corp.’s] Supplemental

Expert Report No. 1 under Federal Rule of Civil Procedure 26.”

5 Moreover, if Fed. R. Civ. P. 26(e)(2) imposed a duty/obligation on expert witnesses,

then, by logical extension, the Federal Rules of Civil Procedure would also delineate a penalty
(or penalties) to assess against an expert who violates it. Yet, the Federal Rules of Civil
Procedure only list penalties the federal courts can assess against a party who violates Fed. R.
Civ. P. 26(e)(2), not an expert. See Fed. R. Civ. P. 37(e)(2).

29
Federal Rule of Civil Procedure 26’s Applicability to Dudley DeBosier - The
January 2020 Stop Work Instruction

Beginning with Flettrich Corp.’s argument as to Fed. R. Civ. P. 26(e), that

Rule’s “duty to supplement . . . arises when the expert subsequently learns of

information that was previously unknown or unavailable, and the new information

renders the earlier report incomplete or inaccurate.” Minskoff, 797 F.Supp.3d at

254 (citation omitted). In other words, “The triggering event for the duty to

disclose” under Fed. R. Civ. P. 26(e) “is that the party ‘learns that in some material

respect the information is incomplete or incorrect.’” 8A FED. PRAC. & PROC. CIV. §

2049.1 (3d ed.). In terms of the January 2020 Stop Work Instruction, Mr. Savoie

issued it in response to what he deemed the “astounding” billing associated with

Flettrich Corp.’s December 2019 Unsafe Conditions Report and December 2019

Expert Report. At that juncture, nothing had triggered Fed. R. Civ. P. 26(e)’s

disclosure requirement. That is, Mr. Flettrich had not yet contended he learned of

new or additional information that purportedly required him to supplement his

December 2019 Expert Report.

Federal Rule of Civil Procedure 26’s Applicability to Dudley DeBosier – The
June 2020 Stop Work Instruction

Turning to the June 2020 Stop Work Instruction, by this point in time, Mr.

Flettrich had already contended in his May 28, 2020 Letter to Dudley DeBosier

that he obtained new information requiring additions or changes to his December

2019 Expert Report. The rationale behind Fed. R. Civ. P. 26(e) is that a party’s

initial expert opinion should be complete, not “preliminary” or a “sneak preview of

a moving target”; yet there may arise instances that “oblige[] a party to supplement

or correct its disclosures upon information later acquired” in the interest of full

disclosure to the opposing party. Mariscal v. Graco, Inc., 52 F.Supp.3d 973, 983-

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84 (N.D. Cal. June 26, 2014) (internal quotation marks omitted) (citation omitted).

Accordingly, Fed. R. Civ. P. 26(e)(2)’s “supplementation requirement increases

the quality and fairness of the trial by narrowing [the] issues and eliminat[ing]

surprise.” Rivera-Marrero v. Presbyterian Cmty. Hosp., 255 F.Supp.3d 290, 296

(D. Puerto Rico June 12, 2017) (alteration in original) (citation omitted). If a party

violates Fed. R. Civ. P. 26(e)’s duty to supplement, then the trial court has the

discretion to exclude the party’s evidence or assess other appropriate sanctions. Id.;

Fed. R. Civ. P. 37(c)(1).

To the extent Mr. Flettrich’s May 2020 Letter triggered Dudley DeBosier’s

obligation to disclose under Fed. R. Civ. P. 26(e), that is all it did. Dudley

DeBosier still had the right to issue the June Stop Work Instruction under the

Expert Contract. Nothing in Fed. R. Civ. P. 26(e) prevented Dudley DeBosier from

doing so or voided the already-issued January 2020 Stop Work Instruction. In other

words, Mr. Flettrich’s May 2020 Letter did not override Dudley DeBosier’s

contractual right to issue the Stop Work Instructions. It merely required Dudley

DeBosier to determine how to proceed in light of the new information Mr. Flettrich

alleged he received and to face the possible sanctions delineated in Fed. R. Civ. P.

37(c)(1) if it incorrectly determined that supplementation under Fed. R. Civ. P.

26(e) was unnecessary. Accordingly, Flettrich Corp.’s argument that Fed. R. Civ.

P. 26(e) voided the Stop Work Instructions is meritless.

Paragraph 6.D of the Expert Contract

Flettrich Corp. also alleges Dudley DeBosier’s violation of Paragraph 6.D of

the Expert Contract voided the stop work instructions. Paragraph 6.D required

Dudley DeBosier “[t]o provide [Flettrich Corp.] with copies of or access to all non-

privileged, arguably relevant documents, evidence and other materials in the

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case/project.” Flettrich Corp.’s only argument about Paragraph 6.D in this section

of its brief is that “Mr. Savoie’s refusal to timely provide Flettrich with the Reed

and Koch depositions undoubtedly constitutes a bad faith breach of [P]aragraph

6.D of the Expert Contract particularly considering the legal obligation of Mr.

Savoie to comply with the requirements of Rule 26 of the Federal Rules of Civil

Procedure.”6

Even assuming arguendo that Flettrich Corp. is correct that Dudley DeBosier

violated Paragraph 6.D, Flettrich Corp. fails to establish how this had any bearing

on Paragraph 6.M, the stop work provision. As stated previously, Paragraph 6.M’s

only requirement was that any stop work instruction had to be in writing, and

Dudley DeBosier complied with this. The Expert Contract contained no condition

or caveat that Dudley DeBosier could not issue a stop work instruction if it had

failed to comply with another provision of the contract. Though a breach of a

contract by one party can excuse the second party from the contract, “not every

breach” does so. LAD Servs. of La., L.L.C. v. Superior Derrick Servs., L.L.C.,

2013-0163, p. 11 (La. App. 1 Cir. 11/7/14), 167 So.3d 746, 755-56. Rather, it must

be a substantial breach, and the first party’s breach must be the actual cause of the

second party’s failure to comply with the contract. Id. at p. 13, 167 So.3d at 756.

Flettrich Corp. fails to explain how Dudley DeBosier’s alleged non-compliance

with Paragraph 6.D’s document production requirement caused Mr. Flettrich’s

failure to comply with the Stop Work Instructions. In fact, it would seem that

Dudley DeBosier’s alleged failure to provide documents to Mr. Flettrich would

have served as the basis for Mr. Flettrich not to work rather than continuing to

6 Having already analyzed the applicability of Fed. R. Civ. P. 26 to Dudley DeBosier in

the preceding section, we find it unnecessary to discuss it again here.

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work. Dudley DeBosier’s alleged breach was not the cause of Flettrich Corp.’s

non-compliance with the Expert Contract. It was Mr. Flettrich’s unfounded belief

that he was justified in and authorized to continue working and billing. Moreover,

we note Flettrich Corp. did not provide the above-cited law regarding a substantial

breach excusing the other party’s non-performance in its brief to this Court. Again,

Flettrich did not define bad faith or delineate what constitutes bad faith nor does it

show how Dudley DeBosier’s actions fit this definition. A party cannot simply say

something is “undoubtedly” a bad faith breach with nothing to support this

statement. See Uniform Rule 2-12.4(B)(4); Marie, 2007-397, p. 3, 973 So.2d at

781 (citation omitted); McCorvey, 2005-174, p. 6, 916 So.2d at 363. This argument

is both meritless and not properly briefed.

Further, the contract provisions have to be read in pari materia. If Dudley

DeBosier directed Flettrich Corp. to stop working in compliance with Paragraph

7.M of the Expert Contract, which it did, then why would Dudley DeBosier have to

continue sending documents to Flettrich Corp. in compliance with Paragraph 6.D if

Dudley DeBosier did not want Flettrich Corp. to review those documents and

continue working? Dudley DeBosier’s duty to disclose documents to Flettrich

Corp. under the contract only existed when Flettrich Corp. needed said documents

to perform authorized work. With the Stop Work Instructions in place, Flettrich

Corp. did not need those documents. This held true unless or until Dudley

DeBosier lifted the Stop Work Instructions entirely or directed Mr. Flettrich to

review certain documents. (In this latter regard, Mr. Savoie ultimately did direct

Mr. Flettrich to review the ten deposition transcripts during their July 27, 2020

phone conversation for the limited purpose of preparing for his deposition). To

hold otherwise would be illogical.

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Finally, we find Flettrich Corp.’s position to be disingenuous. Based on

Flettrich Corp.’s arguments to this Court, if Dudley DeBosier had in fact sent the

deposition transcripts to Flettrich Corp. upon receipt of same, then Flettrich Corp.

would likely be arguing that this action constituted a rescission of the Stop Work

Instructions and thus authorized Mr. Flettrich to review them and bill for said

review. In conclusion, Flettrich Corp.’s third assignment of error is without merit.

Assignment of Error Number Four: Photo of Dislodged Vent Pipe Shown to
Mr. Flettrich During His Deposition

In its fourth assignment of error, Flettrich Corp. asserts that “[t]he [t]rial

[c]ourt erred as a matter of fact in failing to hold that during [Mr.] Flettrich’s July

31, 2020 deposition he was shown photographic exhibits of a dislodged vent pipe

serving old boiler #1 and the extent and height of the flooding of the boiler room

which was new and additional information he was unaware of prior to the

preparation of his June 12, 2020 Supplement Expert Report No. 1.” Flettrich Corp.

asserts in its brief that Mr. Flettrich testified at trial that this photo of the dislodged

vent pipe, among other “photographs that were introduced at his deposition[,]

caused him to consider supplementing his report . . . as required by Fed R. Civ. P.

26(e)(2).” As delineated previously, Fed. R. Civ. P. 26(e)(2) imposed no

requirements on Mr. Flettrich, a non-party to the Casey litigation. Thus, even if the

trial court had found the photo was “new and additional information [Mr. Flettrich]

was unaware of prior to the preparation of his June 2020 Supplemental Report,”

this is of no import. Federal Rule of Civil Procedure 26(e)(2) neither imposed a

duty on Mr. Flettrich to supplement his prior reports nor authorized him to do so.

This assignment of error is without merit.

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Assignment of Error Number Six: Denial of Recovery for Preparation of
December 2020 Supplemental Report

In its sixth assignment of error, Flettrich Corp. asserts that “[t]he [t]rial

[c]ourt erred as a matter of law in denying [its] recovery for expert services

rendered in preparation of Supplemental Expert Report No. 2 dated December 11,

2020, which contained new and additional information not available prior to the

June 12, 2020 Supplement Expert Report No. 1.” One such piece of “new and

additional information” was Mr. Flettrich’s viewing of the aforementioned

photographs of the vent pipe that Flettrich Corp. contends necessitated

supplementation per Fed. R. Civ. P. 26(e)(2). The prior sections of this Opinion

already detailed why this contention lacks merit.

Another piece of “new and additional information,” according to Flettrich

Corp., was Mr. Flettrich’s July 27, 2020 receipt of the ten deposition transcripts he

was to review prior to his own deposition. Flettrich Corp. states the ten

“depositions included the deposition of Mr. Reed which provided new and detailed

information related to the flooding of the . . . boiler room” in the Caseys’ building.

In the section of Flettrich Corp.’s brief addressing its sixth assignment of error,

Flettrich Corp. merely alleges the information was “new and detailed.” Flettrich

Corp. does not provide any reasons in this section of its brief why the information

required Mr. Flettrich to issue the December 2020 Supplemental Report or

anything that purportedly authorized him to do so. To the extent Flettrich Corp. is

again alleging Paragraph 7.B of the Expert Contract and Fed. R. Civ. P. 26(e)(2)

authorized him to do so, this Opinion has already explained why that is not true.

In addition to noting Flettrich Corp.’s failure to adequately brief this

argument, we find this assignment of error lacks merit.

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Assignment of Error Numbers Seven, Eight, and Nine: The September 2020
Retainer Replenishment Payment of $9,600

In its seventh assignment of error, Flettrich Corp. asserts that “[t]he [t]rial

[c]ourt erred as a matter of fact in failing to hold that [Dudley DeBosier] rescinded

its January 3 and June 3, 2020 [S]top [W]ork [I]nstructions by its September 14,

2020 [R]etainer [R]eplenishment [P]ayment of $9,600 ‘as requested’ in response to

Flettrich[] [Corp.’s] letter of May 28, 2020 and email of August 10, 2020.” Then,

in its eighth assignment of error, Flettrich Corp. contends that “[t]he [t]rial [c]ourt

erred as a matter of law in failing to hold that [Dudley DeBosier] rescinded its

January 3, 2020 and June 3, 2020 stop work instructions to [Flettrich Corp.] by

[its] September 14, 2020 $9,600 retainer replenishment payment.” Further, in its

ninth assignment of error, Flettrich Corp. contends “[t]he [t]rial [c]ourt erred as a

matter of law in failing to hold that the professional services invoiced to [Dudley

DeBosier] in [Flettrich Corp.’s] December . . . 2020 . . . [I]nvoice . . . are the very

same professional services that were described in detail in paragraph 3 of [Mr.

Flettrich’s] May 28, 2020 letter, were referenced in [Mr. Flettrich’s] August 10,

2020, email and were ‘authorized’ by [Dudley DeBosier] in its September 14, 2020

retainer payment of $9,600 ‘as requested’.” Essentially, Flettrich Corp. is arguing

in its seventh and eighth assignments of error, respectively, that the trial court erred

factually and legally by not deeming Dudley DeBosier’s September 2020 Retainer

Replenishment Payment to be a rescission of the Stop Work Instructions. Then, in

the ninth assignment of error, Flettrich Corp. contends that the rescission of the

Stop Work Instructions (via the September 2020 Retainer Replenishment Payment)

meant the services listed in its December 2020 Invoice were authorized (with

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Flettrich Corp. having requested to perform them in Mr. Flettrich’s May 2020

Letter and August 2020 email) and owed by Dudley DeBosier.

In the section of its brief addressing these assignments of error, Flettrich

Corp. merely contends that with the September 2020 Retainer Replenishment

Payment, Mr. Savoie “acquiesced” to his retainer replenishment request;

“replenished the retainer in the amount of $9,600 ‘as requested’”; “rescind[ed]

[the] previous two stop work instructions”; and “authoriz[ed] Mr. Flettrich to bill

Dudley DeBosier for the services described in paragraph 3 of the May 28, 2020

letter.” Primarily, this section of the brief merely reiterates some of the timeline of

events. Flettrich Corp. provides no argument, explanation, authorities, or briefing

as to how and why Dudley DeBosier’s September 2020 Retainer Replenishment

Payment constituted a rescission of the Stop Work Instructions or an authorization

for Flettrich Corp. to bill in December 2020 for the services listed in his May 2020

Letter and August 2020 email.

To the extent Flettrich Corp. focuses on the “as requested” language of Mr.

Savoie’s September 2020 Retainer Replenishment Letter, we find this referred to

the amount requested, not the numerous activities Mr. Flettrich delineated in

Paragraph 3 of the May 2020 Letter. To say that the mere phrase “as requested”

authorized all of the activities listed in Paragraph 3 of the May 2020 Letter is a

giant leap, especially in light of the context. (The context being that the two Stop

Work Instructions remained in place, and Mr. Savoie testified that he gave clear

instructions to Mr. Flettrich during their July 27, 2020 phone call that he was only

authorizing Mr. Flettrich to review the ten deposition transcripts and sit for his

deposition.) Instead, as the trial court explained in its written reasons for judgment,

Dudley DeBosier’s only exception to its Stop Work Instructions was its

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authorization of Mr. Flettrich’s deposition-related activity and nothing more. That

finding was not manifestly erroneous or clearly wrong, so it does not serve as a

basis for reversal. The September 2020 Retainer Replenishment Payment did not

rescind the Stop Work Instructions, and the services listed in Flettrich Corp.’s

December 2020 Invoice were not authorized. Flettrich Corp.’s seventh, eighth, and

ninth assignments of error are without merit.

Assignment of Error Number Ten: Dudley DeBosier’s Failure to Timely Pay
or Dispute Flettrich Corp.’s December 2020 Invoice

In its tenth assignment of error, Flettrich Corp. asserts that “[t]he [t]rial

[c]ourt erred as a matter of law in failing to hold that [Dudley DeBosier] breached

the Expert Contract by failing to pay [Flettrich Corp.’s] December . . . 2020

[I]nvoice . . . in the amount of $29,362.68 and by its failure to timely dispute

[Flettrich Corp.’s] December . . . 2020 [I]nvoice . . . within 10 days of receipt.”

Dudley DeBosier counters, in pertinent part, that Flettrich Corp. substantially

breached the Expert Contract thereby excusing Dudley DeBosier’s alleged non-

performance.

We find Dudley DeBosier’s counter argument has merit. As previously

explained, a breach of a contract by one party excuses non-performance by the

other party if the first party’s breach is substantial in that it related to the second

party’s non-compliance. LAD Servs. of La., L.L.C., 2013-0163, pp. 11-13, 167

So.3d at 756. See also Stuart Servs., L.L.C. v. Nash Heating & Air Conditioning,

Inc., 2023-00015, p. 1 (La. 3/14/23), 357 So.3d 337, 338 (citations omitted).

Dudley DeBosier established at trial that Flettrich Corp. substantially breached the

Expert Contract. Flettrich Corp. ignored the Stop Work Instructions and issued

reports and performed work Dudley DeBosier had not requested and authorized.

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After these breaches of the Expert Contract, Flettrich Corp. then generated the

December 2020 Invoice based on same. Then, Dudley DeBosier did not timely

dispute the December 2020 Invoice in accordance with the Expert Contract (i.e.,

Dudley DeBosier breached the contract). The breach of the Expert Contract by

Flettrich Corp. directly related to Dudley DeBosier’s breach because the one begat

the other: if Flettrich Corp. had not breached the Expert Contract by performing

unauthorized work, it would not have had any purported basis for generating the

December 2020 Invoice to which Dudley DeBosier did not respond. Dudley

DeBosier proved Flettrich Corp.’s breaches excused its breach. Accordingly,

Flettrich Corp.’s tenth assignment of error lacks merit.

Assignment of Error Number Eleven: Denial of Recovery Pursuant to the
Louisiana Open Account Statute

In its eleventh and final assignment of error, Flettrich Corp. argues that

“[t]he [t]rial [c]ourt erred as a matter of law in denying [Flettrich Corp.] recovery

of professional fees in the amount of $29,362.68 together with interest, costs and

attorney fees pursuant to the Louisiana Open Account Statute. La. R.S. 9:2781.”

Flettrich Corp. does not offer any specific arguments on this assignment of error in

the section of its brief addressing same. Flettrich Corp. merely contends that

“[u]pon reversal of the [t]rial [c]ourt [j]udgment, this . . . Court should render

[j]udgment in favor of Flettrich [Corp.] in the amount of $29,362.68 together with

interest, costs and attorney fees pursuant to the Louisiana Open Account Statute.

La. R.S. 9:2781.”

In light of the above analysis regarding the arguments asserted in

assignments of error numbers one through ten, we find this catchall assignment of

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error is likewise without merit.7 The trial court was not manifestly erroneous or

clearly wrong in finding that the December 2020 Invoice—the basis for Flettrich

Corp.’s Petition—sought repayment for unauthorized work. Thus, Flettrich Corp.

failed to prove an open account.

DECREE

For the foregoing reasons, we affirm the trial court’s March 3, 2025

judgment, which denied Flettrich Corp.’s Petition.

AFFIRMED

7 We note Flettrich Corp. did not brief what a party must prove to succeed under
Louisiana’s open account statute.

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