IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2018-CA-00800-COA ALAINA HILL ROGERS APPELLANT

v. CASEY AND CO. LLC APPELLEE DATE OF JUDGMENT: 05/14/2018 TRIAL JUDGE: HON. JOHN ANDREW GREGORY COURT FROM W HICH APPEALED: CHICKASAW COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: RICHARD SHANE McLAUGHLIN ATTORNEY FOR APPELLEE: REX F. SANDERSON NATURE OF THE CASE: CIVIL - CONTRACT DISPOSITION AFFIRMED IN PART; REVERSED AND RENDERED IN PART - 12/10/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE CARLTON, P.J., GREENLEE AND TINDELL, JJ. CARLTON, P.J., FOR THE COURT: ¶1. Casey and Co. L LC, owned by Casey Moss, 1 sued Alaina Hill R o g e r s f o r dam ages regarding f

lorist services and m aterials supplied f or A l aina’s wedding in May 2017. Alaina’s f a mi l y operates a f

urniture store in W oodland, Mississippi (W oodlands Furniture). I n a bench trial, the court f

ound t hat in Decem

b er 2 016, b ef

ore any f lorist-planning services took place, the parties agreed t hat Casey would perf orm the f lorist services f

or Alaina’s wedding and that Casey could have a sectional sof a, with a p re-tax retail val u e o f $ 3 , 799, f rom W o odlands Furniture. The trial court f urther f ound t hat the value of the sectional sof a would

1 For ease of

ref erence we will som etim es ref er to the plaintif

f as Casey

.be credited on Casey ’s f inal bill to Alaina f

or her f lorist services. ¶2. Casey and Alaina subsequently m et t hree tim e s at the weddi n g - v e n u e s i te between January 2017 and M ay 13, 2017, which was Alaina’s wedding day

. Casey t endered the f inal b i l l f o r t h e f lorist s ervices and m aterials to Alaina. The statem ent provided an item ized description a nd price f

or all m aterials and labor f urnished, totaling $8,872.44, and ref lected

a $3,799 credit f

or the sectional sof

a, resulting in a f

inal ba l a n c e o f $ 5,073.44. Alaina ref used to pay , contending that the parties’ only a greem ent w as t hat C asey could h a v e t he sectional sof

a in exchange f

or her f lorist services f

or Alaina’s wedding. ¶3. A f ter Alaina ref

used to pay , Casey & Co. f iled its com

plaint in the Fir s t J u d i c i a l District of C hickasaw County Circuit C o u r t , s eeking recovery o n the total am ount of indebtedness o f $5,073.44, t ogether with costs, interest, and attorney ’ s f ees. Af t er a bench tri a l , the court f

ound in f avor of Casey & Co., awarding a judgm ent in the am ount of $5,073.44, together with interest and costs. The trial court a lso awarded an attorney ’s f ee in the am ount of

$2,536.72. Alaina appealed. ¶4. For the reasons addressed below, we af f irm the trial court’s award o f t he p r incipal

am ount of the judgm ent, plus interest and costs. W e reverse and rende r t h e t r i a l c ourt’s decision to award an attorney ’ s f ee in the am ount of

$2,536.72. STATEMENT OF FACTS AND COURSE OF PROCEEDINGS ¶5. Plaintif

f Casey M oss operates a f lorist business under the nam e C asey and C o. LLC. Casey provided f

lorist services and m aterials to D ef endant Alaina Hill Rogers f or Alaina’s wedding o n May 13, 2 0 17, which was also Mother’s Day

. Alaina’s f a m ily operates a

2f

urniture business, W o o dlands Furniture. The record ref lects that in Decem

ber 2016, Casey

was l ooking f

o r a sectional sof

a f or her hom e and f

o und one at W oodlands Furniture. Casey and Alaina reached an agreem ent f or Casey to t ake the sectional sof a, w hich had a pre-tax retail value of $3,799, and that am ount w ould be credited on Casey ’s f inal bill t o Alaina f

or the f lorist services and m aterials f or Alaina’s wedding. ¶6. W h en Casey tendered the f inal, item ized bill f

o r her f lorist s ervices and m a terials to Alaina, which ref

lected a credit f

o r the sectional sof

a, Alaina ref

used to pay the rem aining balance in the am ount o f $5,073.44. Casey , through Casey & Co., f iled a com

plaint against Alaina in the Chickasaw C ounty C ircuit Court on August 18, 2017, seeking to recover the total am o unt o f indebtedness o f $ 5 ,073.44, together with costs, i nterest, and attorney ’s f ees. Attached to the com

plaint was C asey ’s af

f idavit of the account and the item ized statem ent f or m aterials and services that Casey & Co. provided f or Alaina’s w edding. In the c om plaint, Casey alleged that Alaina had ref used to pay

“although of

ten requested to do so.” ¶7. Alaina answered a nd raised a num ber of af f irm ative d ef

enses, including the def

ense that “there was n o a greem e nt b etween the parties including suf f iciently d ef

inite term s as to

am ount to a valid contract.” ¶8. The parties a greed to try the case without a jury , and the bench tria l w a s h e l d on March 22, 2018. ¶9. Casey testif

ied on behalf o f Casey & Co. She testif i ed t hat in Decem

b er 2016 she was looking f or a sectional sof

a at W oodlands Furniture and casually spoke with Alaina’s aunt

a b out Casey “get[ ting] som e f urniture f or som e of the cost of the [ f lorist services] f

o r

3[ A l a i n a ’ s] wedding.” Casey told Alaina’s aunt t hat she would be m eeting with Alaina i n

January and that she did not know what the wedding w ould be like because they had not y et

m et. Casey and Alaina talked a f ter that conversation, and C asey testif ied t hat she and Alaina agreed that Casey could pick up the sectional sof a that she liked, a nd that Casey “ would take it of f the bill [ f

or her f lorist services and m aterials].” ¶10. Text m essages between Casey and Alaina were adm itted i n t o e v i d e nce. These text

m essages ref

lect that in Decem

ber 2016, Alaina a greed that Casey ’s husband w ould pick up the sectional sof

a and that W oodlands Furniture w ould h old a blank check f r om Casey “until af ter [ Alaina and Casey ] settle up f r o m t he wedding.” 2 Casey ’s husband picked up the

s e c t i o n a l sof

a i n Decem

ber a s the parties agreed. On May 6, 2017 (a w eek bef or e t h e wedding), Casey again sent a text m essage to Alaina to conf irm the p rice o f the sectional so that she could “know f

or wedding billing purposes.” ¶11. Casey f

urther t estif

ied that she a nd Alaina m et t hree tim es i n K ilm i chael, Mississippi, the place where the wedding would be held. Kilm ichael was about f orty -f ive m inutes f

rom Casey ’s p lace of business in Houston, Mississip p i. Casey and Alaina m et once i n January and once in the f

irst w eek of May , and t hen Casey and two oth e r workers spent approxim a tely

six hours at the wedding venue on the day of the wedding. ¶12. Casey testif

ied about the l abor that went into setting up f or the w e d ding, as well as the labor and m aterials necessary t o c reate the bouquets, f loral arrangem e nts, and other decorations f

or t he wedding. Casey testif ied that Alaina g ave C asey pictures of the bouquets,

2 T h e reco rd ref

lects th at C asey ’ s h u sb an d f o rg o t th e b l an k ch eck , so C asey o f f ered f o r th e sto re to h o ld a d eb it card in stead

. 4centerpieces, cake f lowers, garlands to d

rape in the trees at the venue, f l oral arrangem ents, and pew m arkers that Alaina w anted, and t hese photos were adm itted into evidence. Seven hand-written pages of Casey ’s notes f rom her m eetings with Alaina were also adm itted into evidence, detailing t h e n um ber and descriptions of the various bouquets, corsages, boutonnieres, garlands, greenery , pew m arkers, table arrangem ents, cake f lowers, vase arrangem e nts, centerpieces, and other decorations that Casey was to f urnish. ¶13. The hand-written f inal i nvoice that Casey subm itted to Alaina’s f ather at t he wedding

was adm itted in t o e v i d e n c e , as well as a ty p ed-up version of the sam e invoice that Casey prepared. The f

inal invoice provided a description and p rice f o r all m aterials and labor f urnished, totaling $8,872.44, f rom which the $ 3 , 7 9 9 f

o r t he sectional sof

a was credited, resulting in a f

inal balance of

$5,073.44. Casey testif

ied that when she l earned that Alaina and her f am ily were not planning to pay the balance of her f i nal statem ent, she s ent a letter

m em orializing her dem and f or t his am ount of m oney . A d etailed statem ent of services rendered by

Casey ’s lawy er was also adm i tted into evidence. ¶14. Casey testif

ied that she and Alaina agreed on e very thing listed on the invoice. W ith respect to cost, Casey t estif ied that she told A l a i na that the f lowers would be m ore costly because her wedding was o n M o t h e r ’s Day

. Mother’s Day , according to Casey , was very busy f o r a f l orist and required her to bring in extra help. Casey also t es t i f i e d t hat Alaina wanted certain pew m arkers m ade f rom orchid leis that had to be f lown in f rom Hawaii, and Casey told her “a f

ew tim es” that these would be expensive. Casey suggested that they put them on every other pew, but Alaina “wanted them on every pew, so that’s what we did.”

5¶15. As f or other pricing, C asey adm itted that she and Alaina d id not reach an agreem ent

as t o a f inal price. S he testif

ied that Alaina never m entioned needing a quote, so she did not give h e r one. Casey f

urther testif

ied that they w e r e “add[ ing] to t h i s account constantly .” Copies of entries f

rom Facebook were also adm itted into evidence. I n these entries, Alaina and C asey were joking with Alaina’s f ather, Jef f Hill, about the wedding services Alaina’s f ather still had to pay f

or. C asey said, “[ H]e just doesn’t know does he? ? ? ” Jef f Hill replied, “[ P]retty sure I don’t want to either.” ¶16. A f t e r C a s e y ’s testim o ny , the plaintif f rested. D ef

ense c o u n s e l mo v e d f

o r a n involuntary

dism issal under Rule 41(b) of the Mississippi Rules of Civil Procedure, which the trial court denied. ¶17. Alaina testif

ied on her own behalf

. S h e t e s t if

ied that Casey got t he sectional sof a, “and t hen we agreed that s he would do the f l owers, and we never agreed upon a price other than the sectional.” Alaina conf irm ed that she did not pay the balance of Casey ’ s invoice that

rem ained af

ter the price of the s ectional sof a was credited. She t estif ied that she f

elt like Casey h ad already been paid every thing that the y owed her because she got the s ectional. Invoices f rom other vendors f

rom Alaina’s wedding w ere adm itted into e vidence. The total

am ount of

these invoices was $10,400. ¶18. On cross-exam i nation, Alaina conf irm ed that she was sat i s f i e d with the w ork that Casey did and that Casey

supplied every

thing that Alaina wanted her to supply

. ¶19. Jef f Hill, Alaina’s f

ather, also testif

ied f o r t he def ense. He testif

i ed that Alaina had told him they did not need to worry about pay ing f or t h e f l o r i s t s ervices, as f

ollows: “The

6only thing I know is m y daughter cam e in and said, Dad, we d on’t have to worry about one of the bills, the f

lorist. I said, Okay . W h y ? She said, B ecause we traded a sectional f or her services. Traded som e f

urniture [ w ere] her exact w ords.” Mr. H i ll also testif ied that the f

ood caterer, who also p rovides f lorist services in the area, “looked a t t he job a nd said it would’ve been around $3,500.” The def ense rested. ¶20. The p laintif

f called Melissa Murphy , the o w n e r o f A mo r y F l o wer Shop in nearby A m o r y , Mississippi, as a rebuttal witness. Ms. M urphy testif ied that she reviewed the invoice Casey presented f or Alaina’s wedding a nd that her own p r i ce would be m ore, specif ically $10,007.18, as com

p ared to Casey ’s total invoice of $8,872.44. Ms. Murphy also testif i ed t hat she charges a $750 setup-and-tear-down f ee, as com pared t o t he $ 500 f

ee Casey charged, and that she a dded t ravel expenses separately

. On cross-exam ination, Ms. Murphy acknowledged that she generally m akes it a practice t o provide an estim ate, b ut she has also “done the very sam e thing Casey has d one. There was n o price ever m entioned. They want what they want, and we provide the services.” The plaintif f then rested. ¶21. The t ri a l c o u r t t o o k the m atter under advisem ent, and o n May 14, 2018, the court entered a judgm ent in f

avor of Casey & Co. The trial court f

ound as f ollows: 1. The P laintif

f is a f lorist in Houston, Mississippi, who supplied f lowers f or the wedding of the Def endant i n Kilm ichael, M i ssissippi. The Def endant t estif

ied that she was s atisf

ied with the service of the Plaintif f f or the wedding. 2. The Def

endant has not paid the Plaintif f in f ull f or her wedding, 3. The Def

e ndant is in the retail f

urniture business. The Plaintif f and the Def endant had an agreem ent t hat the Def endant would sell f

urniture c a l l e d a s ectional to t he Plaintif f f or the sum of $3,799.00. The

7Def endant testif

ied that the price did not include sales tax. 4. The Plaintif

f ’s t estim ony and t he text m essages between Plaintif f and Def endant indicated that the cost of t he sectional w ould be credited on the f inal account f

or the wedding. 5. The Plaintif

f tendered the s tatem ent o f a ccount to the Def endant in the am ou n t o f $ 8,872.44. The account shows a credit f or t he sectional applied in the am o unt of

$3,799.00 with a f

inal balance of

$5,073.44. 6. The Plaintif

f introduced into evidence a n item ized statem ent of service and tim e by

her attorney

. The trial judge held that “ Plaintif f should recover a judgm ent f or t he am ount of $5,073.44,” together with interest and costs, “and an attorney f ee ($2,536.72, 1⁄2 o f the balance sued f or) . . . f or a total am ount of $8,387.49.” ¶22. Alaina appealed, asserting that (1) the trial court erred by enf orcing a contract where both parties to the contract a dm itted there was no agreem e nt as to price; (2) the trial court erred by a warding an attorney ’s f ee where there was no statutory basis n o r a g reem ent to support such an award; a nd (3) the trial court erred b y a w arding a n attorney ’s f ee in the absence of

evidence of

the McKee 3 f

actors and with no McKee analy s i s. ¶23. For the reasons s et f orth below, we af

f irm the trial court’s decision that Casey & Co. should recover a judgm ent f or the am ount of $5,073.44, together with interest and costs. W e

reverse and render t he t rial court’s decision to award an attorney ’s f ee because we f

ind that attorney ’s f

ees were not provide f

or by contract or statute. STANDARD OF REVIEW ¶24. “The existence o f a contract is a question of f act that is to be determ ined by a jury , or

3 M cK ee v. M cK ee , 4 1 8 S o . 2 d 7 6 4 , 7 6 7 (M iss. 1 9 8 2 ).

8a t rial judge when a trial is conducted without a jury .” Bert Allen T oyota I nc. v. G rasz , 909 So. 2d 763, 768 (¶12 ) ( M i s s . Ct. App. 2005). “The standard of r eview f or f actual determ inations m ade b y t he trial judge as the sole trie r o f f a c t i n a bench trial is the substantial evidence s ta n d a r d

. ” D elta R eg’l Med. Ctr. v. Taylor , 112 So. 3 d 11, 19 (¶21) (Miss. Ct. App. 2012) (internal quotation m ark om itted). In this regard: The f indings of t he trial j udge will not be disturbed unless the judge a b used his discretion, was m a nif

estly wrong or clearly erroneous or applied an erroneous legal standard. A circuit court judge sitting without a jury is accorded the sam e def erence with regard to his f i ndings as a chancellor, and his f indings are saf e on appeal w h e re they are supported by substantial, credible, and reasonable evidence. Id. at 1 9

- 2 0 ( ¶ 21) (citations and internal quotation m arks om i tted). “However, the Court reviews conclusions of

law . . . de novo.” Id . at 20 (¶21).

DISCUSSION I. The Enforceability of the Agreem ent ¶25. Alaina asserts that the trial court erred in en f o rcing the agreem e n t between her and Casey because there w as no agreem ent between them on the price of Casey ’s f lorist services and m aterials. In response, Casey asserts that the trial court did not a b u s e its discretion in f inding that the f

acts supported its determ inat i o n t h a t Casey should recover t he rem aining bal a n c e of her bill, plus interest and costs, f rom Alaina. For the reasons a d dressed below,

we af f irm the trial c ourt’s judgm ent awarding $5,073.44 in C a s e y & Co.’s f avor, together with interest and costs. ¶26. W e recognize t hat “[ t]he elem ents of a valid contract are (1) two or m ore contracting parties; (2) c onsideration; (3) an agreem ent that is s uf f iciently def

inite; (4) parties with the

9legal capacity to m ake a contract; (5) m utual assent; a nd (6) no legal prohibition p recluding
contract f o rm ation.” B ert Allen Toyota , 909 So. 2d at 768 (¶12). I n this case, Alaina asserts that a ny a greem ent between her and Casey was n ot “suf f iciently d ef

inite” because they did
not have any agreem e nt as to the price of Casey ’ s f lorist services and m aterials. In support, Alaina relies on Leach v
. Tingl e , 5 86 So. 2d 7 99 (Miss. 1991), a case in w hich the Mississ i p pi Suprem e Court held t hat “price is an essential term [ in a contract]. It m ust be stated with specif

icity . W h e re it is not provided, the contract f ails.” Id. at 803. ¶27. The suprem e court also recognized in Leach , however, t hat “[ t]his does not m ean that the price m

ust be set out sim

p ly

. W here, f

rom the term s of the contract, o n e f a miliar with elem entary principles of m athem atical reasoning m ay deduce with certainty the sales price, the contract will not f

ail.” Id. Only “[ w]here the language em p loy ed necessarily r equires a substantial m easure of speculation and conjecture in ascertaining price , [ will] t he contract f ail[ ] .” Id. ¶28. This concept is f

urther developed in a respected treatise on contracts, as f ollows: [ A]lthough t he necessity f or def initeness m ay com

p el the c o urt to f

ind that the language used is t oo uncertain to be given any reasonable ef f e c t , when the parties’ language a nd conduct evidences an i n t e n t to contract, a nd there is some reasonable means

for giving an appropriate remedy, the court will strain to implement their intent

. Thus if a prom ise indef i nite as to price is c apable of being m ade certain by an objective standard through extrinsic f acts, it w ill be enf orced. 1 W illiston on C

ontracts § 4:25, at 771-73 (4t h e d

. 1990) (em phasis added) (citations

om itted). In Denbury O nshore L LC v. Precision W

elding Inc

. , 9 8 So. 3d 449 (Miss. 2012), the Mississippi Suprem e Court lik e w i s e recognized this p rinciple, o bserving that “‘[ i]f no

1 0statem ent as t o t he wages or price to be paid’ is listed, the court will ‘ invoke a standard of

reasonableness s o that the f air value of

the services or property

is recoverable.’” Id. at 454 n.21 (quoting 1 W

illiston on C o n t racts § 4 :25, a t 758-59 (4th ed. 1990)); see Pugh v. Gressett , 1 36 M iss. 661, 101 So. 691, 698 (1924) (“An of f er to sell goods need not specif y the price, f

or, if no price is stated, it will be presum e d that the r easonable m arket price was intended.”). ¶29. In this case, the trial court f ound tha t C a s e y ’ s t e s t i mo n y a n d t he text m essages between Casey a nd Alaina “indicated that the cost of t he sectional would b e c redited on the f inal account f

or the wedding” and that the s t a t e me n t o f account t hat Casey tendered to Alaina showed t hat Casey a pplied a credit f

or the s ectional sof

a f or the agreed upon am ount of $3,799.00, leaving a f

inal balance of

$5,073.44. ¶30. The t rial court also heard the parties’ testim ony a n d reviewed the e v idence regarding the conduct of the parties, including the m e etings between Alaina and Casey , the num erous photos Alaina gave to Casey to show her what she wanted at her wedding, and the copious
notes taken by Casey at her m eetings with Alaina—evidence of conduct supporting the parties’ “intent to contract” f or the m aterials and services Casey provided. ¶31. Further, o ther than Alaina’s and her f ather’s testim o n i e s , w e f i n d n o e vidence to support a theory that the cost of the f l oral services were l im ited t o the cost of the sectional

s of a. Instead, we f

ind that the evidence supports the trial court’s d eterm i nation that t h e parties would s ettle up at the end. Indeed, the r ecord ref l ects that Alaina and her f ather did
not want to know the costs of the f loral services. Not only

did Alaina f

ail to ever ask f

or a

1 1quote o r a price on any thing, but also the testim ony , text m essages, and Facebook m essages adm itted at trial support the f inding that Alaina did not have a price l im it, but r ather she was going to get what she w anted regard l e s s o f t he p rice—including f ly ing f loral leis in f

rom Hawaii. ¶32. The rec o r d a l s o r e f l e c t s that Alaina accepted the goods and services provided by Casey & Co., Alaina was satisf ied with th e w o r k t h a t Casey did, and Casey supplied
every thing that Alaina wanted her to supply

. ¶33. Finally , Casey ’s detailed statem e nt of t he account, item izing each item f urnished and labor costs, provides the r easonable m eans to determ ine t he cost so as t o allow t he trial court
to enf orce the parties’ contractual intentions. Additionally , the testim ony f rom Melissa Murphy , the owner of A m ory Flower Shop in nearby Am ory , Mississippi, s upports the trial judge’s decision that t he contract price was reasonable. See generally 1 W illiston on Contracts § 4:25, at 771-73 (4th ed. 1990). ¶34. In the light of our def erential review o f t h e t r i a l c o u r t ’ s f indings, we f

ind that substantial, credible evidence supports the trial court’s judgm ent against Alaina f o r t he

am ount of $5,073.44, t ogether with interest and costs. W e f urther f in d t h a t t h e re was no

m anif est error in the trial court awarding judgm ent in Casey & Co.’s f

avor. II. Aw a rd of an Attorney ’s Fee ¶35. Alaina asserts that there was no legal basis f or an award of a n a t t o r n ey ’s f ee in this

case, and t hus the trial court’s award of $2,536.72 in an a ttorney ’s f ee s hould be reversed and rendered. W e agree and f i nd that the trial c ourt’s l egal c o nclusion that C asey w as entitled

1 2to an attorney ’s f ee in this case was m ade in error. ¶36. I n T

u p e l o R e d e velopment Agency v
. Gray Corp ., 972 So. 2 d 495 (Miss. 2007), th e suprem e court held that “unless provided by statute or contract, or unless punitive dam ages

are awarded, attorney s’ f

ees m ay not be recovered.” Id

. at 517 (¶68). In this case there is no contractual p rovision allow ing f or the recovery of attorney ’s f ees, nor do we f

ind that this

case i nvolves an open account und e r Mississippi Code Annotated section 11-53-81 (Rev. 2012), as we address below. ¶37. This Court’s de c i s i o n i n D o u g l a s P a r ker Electric Inc. v. Mississippi Design & Development Corp. , 9 49 So. 2d 874 (Miss. Ct. App. 2007), supports our determ i nation that this is not an open-account case. In Douglas Parker , this Court held that the t rial court was
correct i n determ ining that an agreem ent between a g eneral contractor (MD&D) and a subcontractor (Parker) to p um p o u t a barge dam a g ed in a hurricane was “an o ral contract rather than an open account.” Id

. at 8 76 (¶8). In r e a c h i n g t h i s conclusion, this Court f irst observed that “an open account m ust contain a ‘ f

inal and certain agreem ent on p rice.’” Id

. at 877 (¶8) (quoting McLain v. W

. Side Bone & Joint Ctr ., 656 S o. 2 d 119, 123 (Miss. 1995)). W e f urther observed that “an open account ‘results where the parties intend that the account shall b e kept open a nd s ubject to a shif ting balance as additional related entries of debits or credits are m a de, until it shall s uit the convenience of either party to se t t l e a n d close the account.’” Id. (quoting M otive Parts W

arehouse Inc. v. D & H Auto Parts C o. , 464 So. 2d 1162, 1166 (Miss. 1985)). ¶38. Apply ing t hese principles t o the f a c t s bef ore it, the Court f

ound in Douglas Parker

1 3that “there [ was] scant evidence to indicat e t h a t t h e r e was any discussion o f the price of

Parker’s services, let alone a ‘f i nal and certain agreem ent on p r ice.’” I d. at 877 (¶9). Continuing, the Court f

ound that “[ f

]urtherm ore, there was no r unning balance o f c redits and debits, nor was p ay

m ent due at t he convenience o f either party

. Instead, P arker understood that it would be paid when the barge w as sold.” Id. Even t h o u g h P a r k e r treated the
agr e e me n t as one on open account by sending a dem and l etter with its f inal invoices to MD&D and then initiated a collection lawsuit when it got n o response f rom MD&D, see id.

at 876 (¶4), this Court f

ound that “ the agreem ent between the p arties was in the n ature of an oral contract rather than an open account.” Id. at 877 (¶9). ¶39. These s am e f

actors are present in t his case. Both Casey and A laina testif ied that there

was no agreem ent between them a s to price except to the extent that the record showed that Alaina specif

ied exactly

what she wanted regardless of the cost. Nor was there a “running balance of credits and debits” or any testim ony that either p arty believed “pay m ent [ was] due

at the convenience of either p a r t y . ” I d

. Instead, a l though the record ref lects that Alaina

m ade additional requests and new f l oral i tem s were added up until Alaina’ s M a y 2016 wedding, Casey did not issue interim invoices w ith a running balance, nor d id she r equest any pay m ent at all u n til the job was com pleted a n d she presented her f inal, i tem i zed invoice, just as Parker did in Douglas Parker

. ¶40. I n f

i n d i n g t hat the e vidence herein establishes an oral contract but no t a n o p e n account, we conclude that the trial court erred in a warding an attorney ’s f ee to Casey & Co. f or an open account. W e theref o r e r e v e r s e and render on t his i ssue. In the light of this

1 4decision, we d o n o t address Alaina’s f inal assignm ent of error asserting that i n awarding an attorney ’s f

ee, the trial court erred in f ailing to utilize the McKee f actors. See McKee , 418 So. 2d at 767. ¶41. AFFIRMED IN PART; REVERSED AND RENDERED IN PART. BARNES, C.J., J. WILSON, P . J . , GREENLEE, WESTBROOKS, TINDELL, McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.

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