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First National Bank & Trust Co. of Ardmore v. Kelly

Court of Appeals of Oklahoma, Division I

September 20, 2019

SHARON KELLY, a/k/a SHARON L. KELLY, As Personal Representative of the Estate of GREGORY L. KELLY a/k/a GREGORY LYNN KELLY, Deceased/SHARON KELLY, a/k/a SHARON L. KELLY/ The Unknown Occupants/The County Treasurer of Love County, State of Oklahoma and The Board of County Commissioners of Love County, State of Oklahoma. Defendants/Appellees.

          Mandate Issued: 10/16/2019


          Carrie Pfrehm, Mike Mordy, MORDY, MORDY, PFREHM & WILSON, P.C., Ardmore, Oklahoma, for Plaintiff/Appellant,

          Sharon Kelly, Burneyville, Oklahoma, Pro Se/Appellees,

          Assistant District Attorney, Marietta, Oklahoma, for Defendants/Appellees.


         ¶1 This is an appeal from a trial court's order awarding attorney fees and costs in a foreclosure action. Plaintiff/Appellant, First National Bank & Trust Company of Ardmore (Bank), sued Sharon Kelly (Kelly), individually and as Personal Representative of the Estate of Gregory L. Kelly, seeking foreclosure of its mortgage for failure to make due payments. Among its covenants, the mortgage contained language binding Kelly to pay Bank's legal expenses in the event litigation ensued. The trial court granted the foreclosure and awarded Bank attorney fees and costs. However, the award was less than Bank requested. The only evidence in the record supports Bank's calculation of the lodestar, which is the number of hours spent on a case multiplied by the attorney's hourly rate. If a trial court enhances or reduces the lodestar when assessing attorney fees, the court should include its specific reasons in the judgment. State ex rel. Burk v. City of Oklahoma City, 1979 OK 115, ¶8, 598 P.2d 659, 661. Because the trial court failed to substantiate its reduction in the lodestar with specific factual findings, the trial court abused its discretion. Accordingly, the trial court's decision is reversed and remanded.


         ¶2 Bank filed its Petition in January 2018 seeking judgment against Kelly and foreclosure of its mortgage. Kelly filed an answer in March 2018. Bank then filed its motion for summary judgment. Thereafter, Kelly's counsel filed a motion to withdraw, which the trial court granted in May. The hearing on Bank's motion for summary judgement was continued in order to give Kelly time to find new representation. Kelly did not obtain new representation, and the hearing on the motion for summary judgment took place in June 2018. Subsequently, the trial court granted the motion, awarding Bank $90, 398.99, plus interest accrued and accruing thereon at the contractual rate, against Kelly as an individual and Personal Representative. The trial court further foreclosed the Mortgage and related modification agreements and awarded all court costs and a reasonable attorney fee.

         ¶3 Bank filed a motion to assess attorney fees and costs, requesting fees of $6, 783.00 and costs of $2, 083.54. Bank included a time log and applicable rates in the filing. In August 2018, Bank appeared for a hearing on Bank's request for attorney fees and costs. Kelly did not appear. The trial court awarded attorney fees of $4, 260.00 and costs of $2, 015.87. Bank appeals this award, claiming that the reduction in attorney fees and costs was an abuse of the trial court's discretion, and the original request accurately reflects a reasonable fee.


         ¶4 A trial court's award of attorney fees and costs will not be disturbed unless there was an abuse of discretion. Burk, 1979 OK 115, ¶22, 598 P.2d 659, 663. An abuse of discretion exists where the court's decision was clearly erroneous, against reason and evidence. Abel v. Tisdale, 1980 OK 161, ¶20, 619 P.2d 608, 612. The reviewing court is limited to the issues actually presented in the trial court, "as reflected by the record." Frey v. Independence Fire and Cas. Co., 1985 OK 25, ¶6, 698 P.2d 17, 20.


         ¶5 Kelly's failure to respond to Bank's motion for attorney's fees has no effect on the trial court's determination of the fee's reasonableness. The moving party has the burden to show that his requested fee is for a reasonable amount, for necessary services, and is authorized by law. Cory v. City of Norman, 1988 OK CIV APP 7, ¶5, 757 P.2d 851, 852. Furthermore, Kelly's failure to file an answer brief does not warrant automatic reversal in favor of Bank. The trial ...

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